Calif. high court to rule on key Prop 8 legal issue


SAN FRANCISCO — The California Supreme Court is getting involved once again in the debate over gay marriage, and its decision on a technical legal question in the high-profile Prop 8 case could have a major impact on marriage laws in all 50 states.

The seven justices said Feb. 16 they would hear oral arguments in determining whether — the official sponsor of California Prop 8 — has what is called "legal standing" to defend the constitutional amendment. The legal question is this: Does, under California law, have the right to defend Prop 8 in federal court? The question became central in the case after former Gov. Arnold Schwarzenegger and former Attorney General Jerry Brown — who have the legal duty to defend state laws — chose not to defend Prop 8 in court.

The question must be answered before the U.S. Ninth Circuit Court of Appeals even gets to the case's primary question of whether California — and other states — can constitutionally define marriage as between a man and a woman and prohibit gay marriage. A three-judge Ninth Circuit panel asked the California court in January to answer the question regarding legal standing, saying in an order, "We cannot consider this important constitutional question [of gay marriage] unless the appellants before us have standing to raise it."

The fact that the California court even took the case was a win for's legal team. Homosexual groups had urged the California court not to take up the case.

The National Organization for Marriage is pleased that the court will consider whether the proponents of Proposition 8 have legal standing.

"The California Supreme Court has established a clear pathway for the decision of voters to finally be respected.," said NOM president Brian Brown. " We have no doubt that the state supreme court will find that the proponents of Prop 8 have the right to defend the initiative."

Passed by voters in 2008, Prop 8 amended the state constitution to define marriage as between one man and one woman. Some have called the case a potential "Roe v. Wade" for the issue of gay marriage. A lower court judge within the Ninth Circuit issued a landmark decision last year striking down Prop 8, ruling that a law defining marriage in the traditional sense discriminates against homosexuals. If the ruling is upheld by the Ninth Circuit and then the U.S. Supreme Court — which is not yet involved — then gay marriage likely would be legalized in all 50 states.

Supporters of Prop 8 warn that gay marriage could impact the tax-exempt status of religious organizations, the religious liberty of private businesses, and the curriculum in elementary schools.

The case is Perry v. Schwarzenegger. A time for oral arguments has not been set.

Christian Examiner staff added to this report

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