SAN FRANCISCO, Nov 17 (Reuters) - California's Supreme
Court cleared the way on Thursday for supporters of the state's
same-sex marriage ban to defend it in federal court, a crucial
ruling that allows the pitched battle to decide if gay marriage
is a U.S. right to go forward.
The case on California's 2008 ban, the voter initiative
known as Proposition 8, could set national policy if the U.S.
Supreme Court takes it up, and the high court might agree as
early as next year to hear it, one lawyer said.
More than 40 U.S. states have outlawed same-sex marriages,
and polls show sharp national division on the matter.
The voter-approved ban in the most populous U.S. state has
been in legal limbo over a technical issue: whether citizens
can defend a ballot initiative when elected officials choose
The state's top court unanimously said they could.
Gay rights attorneys said the ruling would help get a
federal appeals court back to the main issue -- whether gay
marriage is a constitutional right.
Both sides made their cases on that core issue a year ago
to the 9th U.S. Circuit Court of Appeals.
"We are very hopeful for a relatively prompt 9th Circuit
decision vindicating the rights of gays and lesbians under the
U.S. Constitution," attorney Ted Olson, fighting for gay
marriage, told reporters on a conference call after the
Proponents of the ban said gay rights attorneys had nothing
"Their entire legal strategy relied on this case ending in
the 9th Circuit, and that strategy has basically crumbled
before their eyes, clearing the path ultimately to the U.S.
Supreme Court, where we think we will prevail," said Andrew
Pugno, a lawyer defending the Prop 8 ban.
OFFICIALS HAD DECLINED
A U.S. district court ruled last year that Prop 8 was
unconstitutional, setting up the current appeals fight.
But former California Governor Arnold Schwarzenegger and
former state Attorney General Jerry Brown, now the current
governor, declined to defend the ban.
The case could have died if proponents of the ban were not
allowed into court. Now backers of a ballot initiative can
defend it if state officials choose not to.
The core case began when Olson and David Boies, who argued
against each other in the U.S. Supreme Court case that put
President George W. Bush in office, joined forces to take on
the California ban.
Both sides have already argued on appeal about the
constitutionality of gay marriage. Proponents of such unions
say marriage is a fundamental right for everyone, while
opponents say voters in California have the right to limit the
institution to opposite-sex couples.
Another challenge could hold up the case, this one
concerning the district judge who ruled that gay marriage was a
right. Now-retired U.S. District Chief Judge Vaughn Walker is
gay, and backers of the ban want his decision thrown out
because they say he was compromised.
That matter is before the same federal appeals panel, after
another district judge said Walker was unbiased.
The Supreme Court could decide by June or October whether
to take the case, Olson said. Pugno agreed that scenario was
possible but said that history in the case suggested more
twists and turns.
"Nothing about this case has been predictable," he
The California Supreme Court case is Perry et al v. Brown
et al, No S189476.
The attorneys that argued the case in the Supreme Court
For the Prop 8 proponents: Charles Cooper of Cooper and
For the Prop 8 opponents: Theodore Olson of Gibson, Dunn &
(Reporting by Peter Henderson and Dan Levine)
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