On Tuesday, September 6, 2011 at 10:00 AM PT, The California Channel will carry live coverage of the California State Supreme Court oral arguments in Perry v. Brown. California residents can watch the arguments online at www.calchannel.com or on their local Cal Channel cable station.

gay_flag_lede.jpgThe California Supreme Court–with two new members seated in the past year–is set to hear arguments in San Francisco Tuesday on a key issue in the state’s legal battle over same-sex marriage.

The question before the panel is whether state law gives Proposition 8’s sponsors the right to appeal a federal trial court ruling that found the voter-approved ban on gay marriage to be unconstitutional.

The initiative’s sponsors and their committee, Protect Marriage, are seeking to appeal that ruling to the 9th U.S. Circuit Court of Appeals.

But in January, the appeals court sent the case to the California Supreme Court for an advisory opinion on whether state law allows an initiative’s sponsors to pursue an appeal when the state’s governor and attorney general refuse to do so.

Gov. Jerry Brown and Attorney General Kamala Harris have both said they won’t defend Proposition 8 because they believe it is unconstitutional.

The 9th Circuit said that federal law, as set forth by the U.S. Supreme Court in an Arizona case in 1997, doesn’t appear to allow appeals by initiative sponsors in such circumstances.

Therefore, the court said, “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.”

After hearing Tuesday’s arguments, the seven-member state high court will have 90 days to issue its advisory opinion on whether the proponents have the legal right, or standing, to appeal. The case will then go back to the federal appeals court.

The state court’s two newest members are Chief Justice Tani Cantil-Sakauye, a former state appeals court judge named by Gov. Arnold Schwarzenegger to replace retired Chief Justice Ronald George, and Justice Goodwin Liu, a University of California at Berkeley constitutional law professor nominated by Brown to replace Justice Carlos Moreno.

Cantil-Sakauye, 51, viewed as a moderate, and Liu, 40, considered a liberal, are the two youngest judges on the court, whose other members are in their 60s and 70s. Cantil-Sakauye took office on Jan. 3 and Liu was sworn in to his post by Brown on Thursday, following his confirmation by a state commission on Wednesday.

Both their predecessors played an important role in the court’s previous three rulings on same-sex marriage.

George, as the leader of the court, wrote the majority decision in each of those three cases.

The first was a unanimous decision in 2004 saying that San Francisco didn’t have a unilateral right to allow gay marriages without the backing of a state appeals court. Next, after a new set of cases worked its way through the state court system, George wrote a 4-3 ruling in May 2008 that said the state Constitution provided a right to same-sex marriage.

Finally, in 2009, George wrote a 6-1 decision that said state voters had the right to amend the California Constitution to ban same-sex marriage through Proposition 8, enacted in November 2008.

The lone dissenter who voted to overturn Proposition 8 in 2009 was Moreno, Liu’s predecessor. Moreno was then, as Liu is now, the only member of the court appointed by a Democrat.

The battle over same-sex marriage then switched to federal court, in a new lawsuit in which a lesbian couple from Berkeley and a gay couple from Burbank argued that Proposition 8 violated their federal, as opposed to state, constitutional rights.

After a non-jury trial, now-retired U.S. District Judge Vaughn Walker ruled in San Francisco last year that the initiative violated the federal rights of due process and equal protection. His decision has been put on hold during the appeal.

In contrast to its 2008 ruling, the case now before the California Supreme Court concerns a procedural issue and not the constitutionality of same-sex marriage.

The Proposition 8 sponsors argue that they should be allowed to step in to appeal to protect the fundamental right of Californians to enact initiatives.

“If we don’t have standing, who does? It’s an absurd result,” Protect Marriage attorney Andrew Pugno said last week.

The same-sex couples, joined by the city of San Francisco, contend that the state Constitution gives only the governor and the attorney general, and not “an unelected group of private officials,” the authority to decide when and how to defend state laws.

The elected officers have the authority to determine that “some laws are so misguided, discriminatory and harmful that they do not warrant a defense in court,” the couples’ attorneys wrote in a court filing.

Margaret Russell, a constitutional law professor at Santa Clara University, said last week the California court’s ruling will be advisory and the 9th Circuit will make the final decision on whether California’s strong tradition of voter initiatives creates a different set of facts from the Arizona case ruled on by the U.S. Supreme Court.

“They’re asking the California court not to decide, but to inform them,” Russell said.

But “the California Supreme Court’s decision will be heavily influential,” she said.

If the 9th Circuit concludes that the Proposition 8 sponsors have standing, it will go ahead and decide their appeal of Walker’s ruling. If not, Walker’s decision would be left in place. But a new round of federal court hearings would probably be needed to determine whether Walker’s decision would apply statewide or only in Alameda and Los Angeles counties, the home counties of the two plaintiff couples, Russell said.

Another law professor, Marc Spindelman of Ohio State University, said that while the issues before the California Supreme Court are procedural, “they are no sideshow.”
“There’s nothing trifling about them,” he said.

“What the court has before it are questions about how the state’s direct democracy rules should be understood to synch with its constitutionally-based ideas of representative government,” Spindelman siad.

“Who speaks for the people and the state – and when?” he asked.

Julia Cheever, Bay City News

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