Californian Supreme Court to hear Prop 8 case, delaying decision on gay marriage until 2012

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The legal saga over gay marriage in California looks set to drag on for another year.

Last night, the Californian Supreme Court agreed to decide whether the backer of Proposition 8, the 2008 voter initiative that banned gay and lesbian marriages, has the right to appeal a lower court decision that the ban was unconstitutional.

A three-judge panel of the 9th US Circuit Court of Appeals asked the Californian Supreme Court if Protect Marriage, the backer of the original ballot, known as Prop 8, can step in to defend the ban as state officials have refused to defend the ban on gay marriage.

The confusion stems from a ruling by Judge Vaughn Walker in August, which ruled that the ban on gay marriage in California was wrong. The decision came after a lengthy “trial” of the arguments for and against allowing gay couples to marry. “The evidence presented at trial and the position of the representatives of the State of California show that an injunction against enforcement of Proposition 8 is in the public’s interest,” Judge Walker wrote at the time. He initially ordered for gay marriages to resume in the state with almost immediate effect.

Unusually, the official ‘defendants’ of that appeal, then governor Arnold Schwarzenegger and Attorney-General Jerry Brown, refused to defend the ban. So, the groups who supported the introduction of Prop 8 have been arguing that they have the right to defend the ban on marriage.

The Supreme Court has now asked for written arguments to be submitted between March 14 and May 9 and pledged to hold a hearing in September, at the earliest. A decision would then be made within 90 days.

If the Supreme Court then decides that Protect Marriage have the right to defend the case, then it will return to the 9th US Circuit Court of Appeals. If the Supreme Court rules that the group do not have right to defend the case, it is likely to reinstate gay marriage in California. Either way, a final decision looks unlikely to be reached during 2011.