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Supreme Court May Dismiss California's Prop 8 on Technicality

Image: Supreme Court May Dismiss California's Prop 8 on Technicality A man holds a rainbow flag in front of the U.S. Supreme Court on March 26 as the court heard arguments on California's Proposition 8 ban on same-sex marriage.

By Greg Richter   |  

Lawyers fighting to overturn California's same-sex marriage ban are telling state leaders to be ready for the U.S. Supreme Court to dismiss the case on a technicality.

What that would mean is unclear.

Voters passed Proposition 8 in November 2008, six months after a state Supreme Court ruling allowed same-sex marriages, the Los Angeles Times reported Sunday. The amendment to the state constitution defined marriage as being between a man and a woman, effectively outlawing gay weddings, which had had been taking place in the state for six months.

All weddings that had already taken place remain legal.

Lawyers sued to overturn the law on behalf of two couples, one in Los Angeles County and one in Alameda County. San Francisco County District Judge Vaughn R. Walker ruled the law unconstitutional in 2010, but the 9th Circuit Court of Appeals stayed Walker's order, saying that since the suit was not brought as a class action, the ruling applied only to the two couples or to the two counties in which they reside.

It is unclear to legal experts what it will mean if the Supreme Court dismisses the case. Some think it will revert to the 9th Circuit, which could lift the hold on Walker's order.

In case that happens, same-sex advocates are lobbying Gov. Jerry Brown and Attorney General Kamala D. Harris to go forward and assume the law applies statewide. Both Brown and Harris support same-sex marriage.

The Supreme Court could also rule that Protect Marriage, which sponsored Prop 8 and has been the defendant in court has no standing, The Times reported. If that were the case, a county clerk who opposes gay marriage might have to step in as a surrogate. The clerk would be charged with showing standing as well.

"One would hope our opponents would say it is time to stop this fight and move on to something else," Theodore J. Boutrous, a lawyer for Prop 8's challengers said.


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Lawyers fighting to overturn California's same-sex marriage ban are telling state leaders to be ready for the U.S. Supreme Court to dismiss the case on a technicality. What that would mean is unclear. Voters passed Proposition 8 in November 2008, six months after a state...
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