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Appellate Court Asks California Supreme Court To Weigh In On Gay-Marriage Ban

Publication Date: 
January 04, 2011
Source: 
The Washington Post
Author: 
Jerry Markon

Professor Ralph Richard Banks is quoted by the Washington Post in the following article regarding an unusual move by the Ninth Circuit of Appeals. The federal appeals court opted to consult the California Supreme Court in deciding whether or not the proponents of Proposition 8 have legal standing to bring their case before the court. Jerry Markon reports:

A federal appeals court in California on Tuesday took the unusual step of asking a state court to decide a key legal question before it considers whether the state's ban on same-sex marriage violates the U.S. Constitution.

The U.S. Court of Appeals for the 9th Circuit sought the input of the California Supreme Court on whether proponents of the ban, known as Proposition 8, have the legal standing to defend it in court. The question lies at the heart of the case because California officials had declined to defend the measure, as is customary when laws are challenged.

...

"There are certainly justifiable reasons that weigh in favor of allowing such a controversial decision to be appealed,'' said R. Richard Banks, a professor at Stanford Law School. He said that it is unusual for a federal court, which has its own rules on appeals, to seek guidance from a state court and that the judges were probably reacting to political sensitivities.

"The last thing you want is a sense that some federal judges came in and hijacked the state and required it to recognize same-sex marriage when the people didn't want to,'' Banks said.