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Calif. gay marriage ban faces next legal hurdle

•  Court News     updated  2011/09/05 08:40

California's same-sex marriage ban faces its next legal test Tuesday when the state's highest court attempts to shed light on whether the voter-approved measure's backers have legal authority to appeal the federal ruling that overturned Proposition 8.

The California Supreme Court is scheduled to hear an hour of arguments on that question, which could prove crucial to the future of the voter-approved ban. The federal appeals court that is considering the initiative's constitutionality wants the state court to weigh in on the matter before it issues its decision.

The 9th U.S. Circuit Court of Appeals has expressed doubts about the ability of Proposition 8's sponsors to challenge the lower court ruling absent the involvement of California's governor or attorney general, both of whom refused to appeal a federal judge's August 2010 decision striking down the ban as a violation of gay Californians' civil rights.

The court punted the question to the California Supreme Court earlier this year, saying it was a matter of state law.

Lawyers for the coalition of religious and conservative groups that qualified Proposition 8 for the November 2008 ballot maintain they are legally eligible to represent the majority of California voters who approved the same-sex marriage ban. They argue that because California has such a vigorous citizen's initiative process, it would not make sense for elected officials to effectively veto measures by not defending them in court.

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