The state Supreme Court agreed Wednesday to hear arguments on whether backers of Proposition 8 have legal standing to appeal a federal judge's ruling that the voter-approved ban on same-sex marriage is unconstitutional.
The court agreed to answer a request by the U.S. 9th Circuit Court of Appeals, which last month requested a clarification on the ability of Prop 8 supporters to press the case in appellate courts. The high court indicated it could hear arguments on the issue as early as September.
In August, U.S. District Judge Vaughn Walker in San Francisco struck down the voter-approved ban on same-sex marriage, saying it "both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation."
Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown refused to appeal Walker's ruling, so the decision was appealed by groups that supported Proposition 8 and want same-sex marriage banned in the state.
A three-judge panel of the U.S. 9th Circuit Court of Appeals heard arguments late last year, including legal wrangling about whether the opponents of same-sex marriage have the legal standing to bring the appeal, which would typically be handled by the state.
But in a brief order filed last month, the appeals court noted that it could not decide the constitutionality of Proposition 8 until it receives clarification on the right of its supporters to bring the appeal in the first place.
" ... it is critical that we be advised of the rights under California law of the official proponents of an initiative measure to defend the constitutionality of that measure upon its adoption by the people when the state officers charged with the laws' enforcement, including the attorney general, refuse to provide such a defense or appeal a judgment declaring the measure unconstitutional," according to the court's order.
In March 2000, California voters approved Prop. 22, which specified in state law that only marriages between a man and a woman are valid in California. But in May 2008, the state Supreme Court ruled the law was unconstitutional because it discriminated against gays, and an estimated 18,000 same-sex couples got married in the ensuing months.
Opponents of same-sex marriage quickly got Prop. 8 on the November 2008 ballot to amend the state constitution, and it was approved by a margin of 52.5 percent to 47.5 percent.
The approval of the measure led to statewide protests and lawsuits challenging the legality of Prop. 8.
In May 2009, the California Supreme Court upheld Prop. 8, but also ruled that the unions of roughly 18,000 same-sex couples who were wed in 2008 would remain valid.
Various gay- and lesbian-rights groups have considered putting the issue back on the ballot, but even the supporters of same-sex marriage have sparred over when to ask voters to reconsider the issue.
Many gay activists have criticized the filing of the federal court case out of concern that the conservative U.S. Supreme Court will uphold Prop. 8, setting back the fight for same-sex marriage.