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Proposition 8, California's Same-Sex Marriage Ban, Sponsors Legally Entitled To Defend Measure: Ruling

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By Lisa Lef, Associated Press

SAN FRANCISCO -- California's highest court says ballot proposition sponsors can step in to defend their initiatives from legal challenges if the state's governor and attorney general refuse to do so.

The California Supreme Court on Thursday responded to a pivotal question from the federal appeals court that is considering the ban's constitutionality.

A three-judge panel of the 9th U.S. Circuit Court of Appeals made the inquiry in January after concluding it needed to determine first if Proposition 8's sponsors have authority to defend the measure.

In its analysis, the state court did not address that specific case, but says the lawmaking power granted to citizens under the state constitution doesn't end once propositions have been approved or rejected by voters.

The appeals court panel now must decide whether to accept the court's guidance and if so, how to apply it to the ongoing legal skirmish involving Proposition 8.

THIS IS A BREAKING NEWS UPDATE. Check back soon for further information. AP's earlier story is below.

The California Supreme Court plans to issue a decision Thursday that could prove pivotal to the future of the state's voter-approved ban on same-sex marriage and have far-reaching consequences for its notoriously vigorous citizens' initiative process. .

The court announced that it would file a written opinion that clarifies if the California Constitution permits the sponsors of ballot initiatives to defend their measures from legal challenges absent the cooperation of the governor or attorney general.

The question, which until now has remained unsettled under California law, is central to the ongoing court battle over the 2008 initiative known as Proposition 8, a constitutional amendment that stripped same-sex couples of the right to wed following the most expensive campaign on a social issue in U.S. history.

A federal judge last year struck down Proposition 8, declaring that it violated the civil rights of gay and lesbian Californians. The coalition of religious and conservative groups that sponsored it appealed, but then-Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown, who both support marriage rights for same-sex couples, refused to do the same on the state's behalf.

Expressing doubts about the ability of initiative proponents to wage an appeal on their own, the 9th U.S. Circuit Court of Appeals asked the state high court to weigh in before it tackled the broader constitutional issues.

A 9th Circuit panel suggested in January that unless the state court determined that initiative sponsors have independent legal standing, it would have to dismiss the appeal and leave the lower court ruling overturning Proposition 8 in place without further scrutiny.

During oral arguments in September, however, the Supreme Court often leaned in favor of the ban's backers, who argued that the lawmaking power granted to citizens does not end once propositions have been approved or rejected by voters. Several justices noted that their court always had, as a matter of practice if not formal policy, allowed the sponsors of ballot questions to appear before it when their measures were challenged.

Once the Supreme Court voices its interpretation, the appeals court panel will have to decide whether to accept the court's guidance and if so, how to apply it to the ongoing legal skirmish involving Proposition 8. If the Supreme Court agrees the gay marriage ban's supporters should be allowed to represent the majority of voters who supported Proposition 8, it would clear the way for the 9th Circuit to analyze the substance of the appeal.

The state court's word, while expected to carry substantial weight since it involves a state Constitutional matter, is non-binding on the federal court.

Whatever the Supreme Court says would establish a state precedent that could be used in other ballot initiative cases the attorney general or governor decline to defend. Although instances are rare of state officials refusing to appeal rulings that are adverse to voter-approved laws, they have come up in California every couple decades or so.

A three-judge panel of the 9th U.S. Circuit Court of Appeals made the inquiry in January after concluding it needed to determine first if Proposition 8's sponsors have authority to defend the measure.

In its analysis, the state court did not address that specific case, but says the lawmaking power granted to citizens under the state constitution doesn't end once propositions have been approved or rejected by voters.

The appeals court panel now must decide whether to accept the court's guidance and if so, how to apply it to the ongoing legal skirmish involving Proposition 8.

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