Update on California’s Proposition 8 Same Sex Marriage Litigation

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Columnists, and UC Davis law professors, Vikram Amar and Alan Brownstein have written a great article on the latest happenings in the Prop 8/Same Sex Marriage litigation. The article summarizes the recent ruling by the California Supreme Court, and suggests that the California ruling paves the way for the case to head toward the U.S. Supreme Court.

The California Supreme Court decided as a matter of California law, that initiative proponents enjoy some special capacity to represent the state’s electorate when public officials decline to defend a law adopted through direct democracy. This resolved a hangover question from the Federal courts regarding whether or not the matter should even be heard in the Federal courts.

The authors explain:

In addition to answering this state-law question, the [California Supreme Court] court—in a somewhat unusual and ambitious move—also rendered its view that proponents should have standing to defend initiatives in federal court (where the Prop. 8 litigation is taking place) as well as state court. The California Justices acknowledged that standing in federal court is a matter not of state law, but rather federal law, and thus one for the federal courts ultimately to decide. But the California court offered its own reading of U.S. Supreme Court precedents, and indicated its belief that to the extent the U.S. Supreme Court has been skeptical of initiative-proponent standing in federal court in the past, that was only (or largely) because, in the states involved in prior cases, state law did not authorize proponents to represent the state, whereas in California proponents are authorized to do so.

This would suggest that the California Court wants a ruling from the U.S. Supreme Court, and is doing all it can to get that answer.

Please click here for the original article.

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