The California Supreme Court announced Wednesday that it would re-enter the legal battle surrounding same-sex marriage and seek to hear further arguments by September.
Perry v. Schwarzenegger, the federal lawsuit challenging California’s ban on same-sex marriage, stalled last month, when a three judge panel for the Ninth U.S. Circuit Court of Appeals ruled that it did not know whether it had jurisdiction to hear the case. The panel said that it needed more information on California law. Specifically, it needed to know whether the official proponents of a successful California ballot measure can defend that measure in court when the state’s normal law enforcement officers refuse to do so.
At the moment, California’s statutes and court decisions do not adequately address this question, so the federal court has requested additional guidance from the California Supreme Court. On Wednesday, the California court unanimously announced its intent to answer. The court also said that it would expedite the matter and require submission of the parties’ first briefs in March.
The question of who can defend a ballot measure on appeal is important because two California administrations have refused to support Proposition 8. First, former California Governor Arnold Schwarzenegger and former Attorney General Jerry Brown chose not to defend the ban when gay marriage advocates filed Perry in 2009. Both officials said they doubted the voter initiative would pass constitutional muster. Then, in 2010, California voters chose Brown as their new governor and installed Attorney General Kamala Harris. These officials are continuing the no-defense policy now that the federal case is in appellate court.
In addition, the Ninth Circuit has already ruled that Imperial County, its Board of Supervisors, and a deputy county clerk have no standing to appeal Judge Vaughn Walker’s August decision, which declared Proposition 8 unconstitutional. This means that the only organization left to champion the cause is ProtectMarriage.com and its supporters, who wrote Proposition 8 three years ago and gathered signatures to place it on the 2008 ballot.
If the California Supreme Court says that these people have standing to appeal, then the case will return to the Ninth Circuit, which will address the constitutional dimensions of same-sex marriage in California. The case will also be back on track for a potential hearing in the United States Supreme Court.
However, if the California Supreme Court says that Proposition 8’s supporters do not have standing, then Judge Vaughn Walker’s ruling might remain in place, and California’s same-sex marriages might begin again. The case could end there. Another alternative is that the Ninth Circuit will determine that the proponents still have appellate standing under federal law and that the court will continue to hear the case.
At a minimum, the California Supreme Court’s unanimous decision yesterday gives a timetable for the next chapter in this story. The court stated that it would like to hold oral argument as early as September 2011.
Click here to read the California Supreme Court order.