Calif. court takes up key Prop 8 legal issue

Baptist Press
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Posted: Feb 17, 2011 5:00 PM
Calif. court takes up key Prop 8 legal issue
SAN FRANCISCO (BP)--The California Supreme Court is getting involved once again in the debate over "gay marriage," and its decision on a technical legal question in the high-profile Prop 8 case could have a major impact on marriage laws in all 50 states.

The seven justices said Feb. 16 they would hear oral arguments in determining whether ProtectMarriage.com -- the official sponsor of California Prop 8 -- has what is called "legal standing" to defend the constitutional amendment. The legal question is this: Does ProtectMarriage.com, under California law, have the right to defend Prop 8 in federal court? The question became central in the case after former Gov. Arnold Schwarzenegger and former Attorney General Jerry Brown -- who have the legal duty to defend state laws -- chose not to defend Prop 8 in court.

The question must be answered before the U.S. Ninth Circuit Court of Appeals even gets to the case's primary question of whether California -- and other states -- can constitutionally define marriage as between a man and a woman and prohibit "gay marriage." A three-judge Ninth Circuit panel asked the California court in January to answer the question regarding legal standing, saying in an order, "We cannot consider this important constitutional question unless the appellants before us have standing to raise it."

The fact that the California court even took the case was a win for ProtectMarriage.com's legal team. Homosexual groups had urged the California court not to take up the case. Their argument was simple: If ProtectMarriage.com does not have legal standing, then it has no right to appeal last year's lower court ruling striking down Prop 8.

"Politicians should not be able to nullify a democratic act of the people simply by refusing to defend it," Jim Campbell, an attorney for the Alliance Defense Fund, told Baptist Press. ADF is part of the ProtectMarriage.com legal team. "The people of California have a right to be defended, so the official proponents of Proposition 8 must be allowed to step in and defend that law. Otherwise, state officials will succeed in indirectly invalidating a measure that they had no power to strike down directly."

Passed by voters in 2008, Prop 8 amended the state constitution to define marriage as between one man and one woman. Some have called the case a potential "Roe v. Wade" for the issue of "gay marriage." A lower court judge within the Ninth Circuit issued a landmark decision last year overturning Prop 8, ruling that a law defining marriage in the traditional sense discriminates against homosexuals. If the ruling is upheld by the Ninth Circuit and then the U.S. Supreme Court -- which is not yet involved -- then "gay marriage" likely would be legalized in all 50 states.

Supporters of Prop 8 warn that "gay marriage" could impact the tax-exempt status of religious organizations, the religious liberty of private businesses, and the curriculum in elementary schools.

The case is Perry v. Schwarzenegger. A time for oral arguments has not been set.

Michael Foust is associate editor of Baptist Press.

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