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social sciences

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Proposition 8 (California)  
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On January 4, 2011, the panel issued a unanimous ruling to certify to the California Supreme Court the question of whether Proposition 8's proponents have standing to pursue the case.

The certification process enables federal courts to defer to state courts on questions of state law. The question here is whether California law recognizes the right of the proponents of a ballot initiative to defend its constitutionality if state officials decline to do so.

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At the same time, the Ninth Circuit affirmed the lower court's ruling that one of the appellants, Imperial County, lacked standing. Thus, the issue of whether the official proponents have standing would determine whether there could be a viable appeal.

The Ninth Circuit was expected to issue its ruling in early 2011. However, the certification to the California Supreme Court delayed the ruling for some eight months.

When the California Supreme Court voted unanimously to accept the certification, they outlined a schedule of briefings and oral arguments that extended to September 2011.

In response to this schedule, the legal team representing the plaintiffs filed a motion on February 23, 2011 requesting that the Ninth Circuit Court of Appeals lift the stay on Judge Walker's ruling and allow same-sex marriage to resume in California.

Co-lead attorney Theodore Olson contended that the Appeals Court's request of the California Supreme Court to rule on the standing of the proponents of Proposition 8 created an untenable delay in a case that was supposed to be expedited.

He argued that, "Having prevailed at trial, having demonstrated that they had a fundamental right to marry, and having shown beyond dispute that Proposition 8 works irreparable harm upon gay and lesbian Californians by denying them that right, it is simply intolerable for this Court to continue to deny them that right and to perpetuate their pain for such a length of time--especially given that this Court itself has recognized that Proponents may well have no right to appeal at all."

The request to lift the stay on Judge Walker's decision was denied.

Finally, on November 7, 2011, the California Supreme Court decided that the proponents of voter-enacted legislation should have the right to defend such legislation in cases where the state declines to do so.

Although the ruling by the California Supreme Court was not binding on the Ninth Circuit, the panel was expected to accept the state court's recommendation on the question of standing. The court scheduled additional briefing on the question by December 2, 2011.

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