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Prop 8 wait | Delays continue a year after court ruling

A year after a federal judge overturned the California ballot measure against same-sex marriage, Proposition 8 continues to be enforced. And another anniversary of the landmark decision seems likely before the case reaches a conclusion.

The district court ruling, which was made Aug. 4, 2010, is on appeal and likely to go as high as the U.S. Supreme Court. But before a federal appellate court will rule on the merits of the case, the state Supreme Court must decide a technical issue – can Prop 8 proponents serve as the defenders of the state constitutional amendment in federal court?

The state court is set to hear arguments in that case on Sept. 6.

Meanwhile, West Coast gay couples who want to marry are expressing dismay at the delay and envy of East Coast couples saying “I do” in New York, Massachusetts, Vermont, New Hampshire, Connecticut and the District of Columbia. Same-sex couples also can marry in Iowa.

“Every day same-sex couples are denied the freedom to marry, their families suffer significant harm,” said Geoff Kors of the LGBT civil rights group Equality California.

But the stakes in this case are larger than marriage in a single state. A federal court decision that California’s anti-gay amendment is unconstitutional could nullify anti-gay measures in other states, including Wisconsin.

California voters passed Proposition 8 in November 2008 – the same election in which the state overwhelmingly supported Barack Obama for president.

The proposition on the ballot asked, “Should the California Constitution be amended to specify that only marriage between a man and a woman is valid or recognized in California?” The measure lacked the support of top officials, including then-Gov. Arnold Schwarzenegger. Along with then-Attorney General Jerry Brown, Schwarzenegger later refused to defend Prop 8.

But the measure had significant financial backing from religious institutions, including the Catholic and Mormon churches, and right-wing groups.

The proposition was the right’s answer to a 4-3 California Supreme Court ruling overturning a law banning same-sex marriage. The ruling opened the way for same-sex couples to wed, and 18,000 same-sex couples did so before Prop 8 was passed. Those marriages remain legal.

Prop 8 went on trial on Jan. 11, 2010, with the closing arguments delayed until June 2010. The battle over Prop 8 brought the attorneys who represented Al Gore and George W. Bush in the 2000 dispute over Florida election ballots into the same California courtroom. But this time conservative Theodore Olson and liberal David Boies were on the same team – arguing for marriage equality.

Olson, in a column for Newsweek, explained his participation, which has confused and confounded some conservatives:  “How could a politically active, lifelong Republican, a veteran of the Ronald Reagan and George W. Bush administrations, challenge the ‘traditional’ definition of marriage and press for an ‘activist’ interpretation of the Constitution to create another ‘new’ constitutional right?

“My answer to this seeming conundrum rests on a lifetime of exposure to persons of different backgrounds, histories, viewpoints, and intrinsic characteristics, and on my rejection of what I see as superficially appealing but ultimately false perceptions about our Constitution and its protection of equality and fundamental rights.”

He continued, “Same-sex unions promote the values conservatives prize. Marriage is one of the basic building blocks of our neighborhoods and our nation. At its best, it is a stable bond between two individuals who work to create a loving household and a social and economic partnership.”

On Aug. 4, 2010, U.S. Judge Vaughn R. Walker struck down Prop 8, ruling that the measure violated the U.S. Constitution. Walker ruled that:

n Prop 8 enacted a private moral view without advancing a legitimate government interest and singled out gays and lesbians for different and unequal treatment under the law.

n Laws that discriminate based on sexual orientation would rarely, if ever, be appropriate.

n Prop 8 is unconstitutional under both the due process and equal protection clauses of the 14th Amendment of the U.S. Constitution.

Walker also ordered a halt to the enforcement of Prop 8, and LGBT communities in Los Angeles and San Francisco began preparing to celebrate with weddings.

But the ruling was appealed to the U.S. Court of Appeals for the Ninth Circuit, which issued a stay.

In December 2010, the appeals court heard oral arguments on the case. But justices invited the California Supreme Court to consider whether the proponents of Prop 8 could legally defend the measure in place of the governor and attorney general.

The question before the court is: “Whether under … the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the state’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.”

With a hearing set for 10 a.m. Sept. 6, the state court likely will issue a ruling in December, according to the National Center for Lesbian Rights, which filed an amicus brief in the case.

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