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Prop. 8 Ruling Could Haunt Future Ballot Initiatives

Wikipedia / Creative Commons

Wikipedia / Creative Commons

Two years before the U.S. Supreme Court declared same-sex marriage a constitutional right, it issued a decision on California's ban that could have repercussions on future voter initiatives.

When a state court suspended the 2008 same-sex marriage ban, Proposition 8, Governor Jerry Brown and Attorney General Kamala declined to fight it, so the initiative's proponents brought the suit to federal court.

The Supreme Court did not decide on the initiative's constitutionality. In a 5-4 decision, the justices declared federal law allows only the state to defend initiatives.

California Chief Justice Tani Cantil-Sakauye says the decision is problematic.

"It defeats the purpose of being able to have an initiative," says Cantil-Sakauye.

The chief justice expects opponents of future initiatives will cite the ruling, should similar circumstances arise.

"I’m certain that it will be the basis of an argument should those unique circumstances collide again," Cantil-Sakauye says. "On the other hand, it was unusual in the sense that we were talking about a California constitutional amendment that affected the federal Constitution, which brought in the federal court."

Because of that, the chief justice says she’s not convinced the decision will apply in state court.

"It’ll be persuasive authority, it’ll be very interesting, it’ll be a strong argument, it’ll be even a good argument, but I don’t think it’s a foregone conclusion that that’s going to hold," she says.

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