Prop 8 isn't going away anytime soon if its backers have their way. This week, they filed papers defending their right to fight on behalf of the anti-gay marriage ban.
The case against Prop 8 is in a complicated legal place right now. It lives in two different courts: the Ninth Circuit Court of Appeals (a federal court) is considering whether Prop 8 is constitutional, whereas the California Supreme Court (a state court) is trying to figure out who can legally defend it.
Prop 8 has already been found unconstitutional once in federal court. The people who put the ban on the ballot in 2008 filed an appeal.
But they may not be allowed to do so. Defending laws typically falls to the state attorney general. But two successive administrations have both held that Prop 8 is unconstitutional, and have refused to defend it.
So now, the courts have to decide whether private citizens have the right to step into the role of the attorney general. Can just anyone waltz in and file paperwork on behalf of an unconstitutional law?
Yes, claim Prop 8's backers. Their new brief claims that precedent provides wide latitude in allowing citizens to defend laws.
A response from the pro-equality, pro-marriage side is due in 11 days. Oral arguments will take place in September.
Meanwhile, federal legislators have introduced a bill to repeal the Defense of Marriage Act, which mandates the deportation of gay bi-national spouses, even when they are legally married to American Citizens.