Scales of Justice

By Howard Mintz, San Jose Mercury News
Posted: 06/26/2013 07:14:50 AM PDT

The U.S. Supreme Court today paved the way for same-sex couples to marry soon in California, effectively leaving intact a lower-court ruling that struck down the state’s voter-approved ban on gay marriage.

In a ruling that assures further legal battles, the high court found that backers of Proposition 8 did not have the legal right to defend the voter-approved gay marriage ban in place of the governor and attorney general, who have refused to press appeals of a federal judge’s 2010 ruling finding the law unconstitutional.

The Supreme Court ruling, which found it had no legal authority to decide the merits of a challenge to Proposition 8, sends the case back to that original decision — and the only question now is how quickly same-sex couples can marry and whether that ruling will have immediate statewide effect.

Gov. Jerry Brown and Attorney General Kamala Harris are expected to argue that county clerks across the state are now compelled to issue marriage licenses to same-sex couples once the Supreme Court’s ruling becomes final in about 25 days. But Proposition 8 supporters maintain former Chief U.S. District Judge Vaughn Walker’s 2010 ruling only applies at most to two counties, Alameda and Los Angeles, despite the fact he blocked state officials from enforcing Proposition 8 at the time.

The 5-4 ruling was written by Chief Justice John Roberts, who warned that the Supreme Court has never allowed private citizens, such as backers of a state ballot initiative, to defend state laws in lieu of elected state officials. The ruling wipes out last year’s 9th U.S. Circuit Court of Appeals decision finding Proposition 8 unconstitutional because the ballot measure’s supporters never had the legal right to appeal Walker’s 2010 opinion.

With its narrow approach to California’s circumstances, the Supreme Court left for another day the broader question of whether any state has a right to outlaw gay marriage.

“We have never before upheld the standing of a private party to defend the constitutionality of a private party to defend the constitutionality of a state statute when state officials have chosen not to,” wrote Roberts, joined by an odd coalition of Justices Antonin Scalia, Stephen Breyer, Elena Kagan and Ruth Bader Ginsburg. “We decline to do so for the first time here.”

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