This video from ABC News delivers the full 69 minutes of Tuesday’s short but important Prop 8 trial, the outcome of which will determine if same-sex marriage in California can resume, or if the case will return to the federal courts and most likely, to the Supreme Court.
While most — including Maggie Gallagher of NOM, the National Organization For Marriage — publicly posited that the Prop 8 supporters (read: anti-marriage equality) would lose this step, after watching the entire proceedings it truly appears as if the judges, including newly-seated Justice Goodwin Liu, will decide to allow Protect Marriage the legal right to appeal Judge Vaughn Walker’s ruling that Prop 8 is unconstitutional.
When Chief U.S. District Judge Vaughn Walker ruled in August 2010 that Prop. 8 violated the rights of gays and lesbians to marry their chosen partners, Gov. Arnold Schwarzenegger and Attorney General Jerry Browndeclined to appeal. The Ninth U.S. Circuit Court of Appeals then asked the state’s highest court whether the initiative’s sponsors, a conservative religious coalition called Protect Marriage, have the right to represent the state’s interests in an appeal.
If the California court, the highest authority on the meaning of state law, concludes that only state officials could appeal Walker’s ruling, the federal court probably would dismiss the appeal and allow same-sex couples to marry, at least until a county clerk or someone else affected by the change filed a new suit.
But the court left little doubt about its intentions at Tuesday’s one-hour hearing.
“Is there any authority for the governor and attorney general to second-guess the majority of Californians?” asked Justice Ming Chin.
Plaintiffs in the case – two same-sex couples and the city of San Francisco – argued that California has given its elected attorney general the last word on whether to appeal, settle or concede defeat in cases involving state laws. They also cited a 1997 U.S. Supreme Court ruling that expressed doubt over the authority of initiative sponsors to represent a state in such appeals.
Sponsors of a ballot measure “are elected by no one,” Theodore Olson, a lawyer for the couples, told the court. “They take no oath to represent the people of California,” and, like other private citizens, have no authority “to take over the attorney general’s responsibility to represent the state,” he said.
But Justice Joyce Kennard said denying legal standing to the official sponsors of an initiative would leave the measure without defenders in court, and effectively “nullify the great power that the people have reserved to them for proposing and adopting constitutional amendments” at the ballot box.
The court has up to 90 days to render a decision.
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