A Technicality Could Torpedo Gay Marriage Opponents In California

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With the revelation the Supreme Court will hear two gay marriage cases this spring comes news about how at least one case could be destroyed.In Proposition 8 in California, the Ninth Circuit Court of Appeals affirmed the state’s voter approved ban on gay marriage was unconstitutional. California’s supreme court had previously legalized gay marriage in 2008, prompting the challenge that’s now before the high court.

However, questions about whether the proposition’s supporters actually have standing to challenge California’s high court’s ruling could effectively destroy the case that is before the U.S. Supreme Court, according to SCOTUSblog.

When Arnold Schwarzenegger was governor, the state of California defended Proposition 8 in the district court. However, the state refused to defend the anti-gay Proposition 8 on the appeals court level, so the group Protect Marriage stepped in to defend the law, according to the LA Times.

Attorneys Ted Olson and David Boies have questioned whether the people backing Proposition 8 actually have a right to do so, since gay marriage wouldn’t directly affect them.

And the high court again raised that issue today when it questioned the standing of the challenging, possibly foreshadowing Prop 8’s downfall.

“The key point, though, is that if they succeed in challenging the backers on the standing issue, the case is over: Prop. 8 is gone under the 9th CA decision, because there is no one to defend it,” Lyle Denniston blogged Friday night for SCOTUSblog.

However, such an outcome doesn’t seem likely, according to Denniston.

The case was decided in California on its merits and it was litigated by parties with clear standing to argue the case when a judge weighed in on the issue.

“Just to refresh about the record: In Judge [Vaughn] Walker’s Court, the same-sex couples had standing, and the state of California had standing,” Denniston explained. “When the state refused to defend Prop. 8, Judge Walker allowed intervention by the Prop. 8 backers. That was not disputed.”

The issue about backers only arose when the state refused to appeal Walker’s decision to allow same-sex marriage.

Now check out everything you need to know about the high court’s decision to hear the cases >