WEST HOLLYWOOD, CA - JUNE 08: Los Angeles Police officer Kristi Nielsen (R) holds hands with her girl friend from the Los Angeles Sheriffs Department as they march with the LA sheriffs and LA police "celebrates diversity" entry in the 38th annual LA Pride Parade June 8, 2008 in West Hollywood, California. California gay people are looking forward to the opportunity to legally marry, starting June 17. The California Supreme Court refused to stay its decision legalizing same-sex marriage though conservative and religious opponents called for the court to stop same-sex couples from marrying before their initiative to amend the state constitution to ban gay marriage goes to ballot in November. Some county clerks, including those of Kern, Merced, and Kings Counties, are reportedly threatening to refuse to perform all marriage ceremonies in opposition to the same-sex marriage decision. The parade is expected to draw more than 400,000 people. (Photo by David McNew/Getty Images)
Prop 8 isn't going away anytime soon if its backers have their way. This week, they filed papers defending their right to fight on behalf of the anti-gay marriage ban.
The case against Prop 8 is in a complicated legal place right now. It lives in two different courts: the Ninth Circuit Court of Appeals (a federal court) is considering whether Prop 8 is constitutional, whereas the California Supreme Court (a state court) is trying to figure out who can legally defend it.
Prop 8 has already been found unconstitutional once in federal court. The people who put the ban on the ballot in 2008 filed an appeal.
But they may not be allowed to do so. Defending laws typically falls to the state attorney general. But two successive administrations have both held that Prop 8 is unconstitutional, and have refused to defend it.
So now, the courts have to decide whether private citizens have the right to step into the role of the attorney general. Can just anyone waltz in and file paperwork on behalf of an unconstitutional law?
Yes, claim Prop 8's backers. Their new brief claims that precedent provides wide latitude in allowing citizens to defend laws.
A response from the pro-equality, pro-marriage side is due in 11 days. Oral arguments will take place in September.
Meanwhile, federal legislators have introduced a bill to repeal the Defense of Marriage Act, which mandates the deportation of gay bi-national spouses, even when they are legally married to American Citizens.