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State’s Highest Court To Weigh In On Same-Sex Ban


A California federal appeals court is considering the fate of the state ban on same-sex marriage. Nonpartisan Sacramento political consultant Leo McElroy talks to Morning Edition about the case and the Governor's latest budget proposal.

DWANE BROWN (Host): A California federal appeals court in San Francisco is considering the fate of the state ban on same-sex marriage. We're joined on Morning Edition by nonpartisan Sacramento political consultant Leo McElroy. What's noteworthy about Monday's televised hearings Leo?

LEO MCELROY (Political Consultant): Well, there are actually two different issues being decided here and both of them pretty significant. One of course is the question of whether the court should uphold the overturning of prop. 8 and establish, basically, a constitutional right of gays to enter into a marriage contract. The other is the battle over where standing lies to even go into court. The state has not opted to defend prop. 8. The governor opposes it, the attorney general opposes it and as happened at times in the past where the state says a measure passed by the voters violates the constitution, they don't want to oppose it and so they are not. Therefore, you got the proponents going to court themselves seeking standing to do this along with measures signed by a deputy clerk of little Imperial County attempting to put a government face on the challenge. So there are really two issues. One, if there even a reason to be hearing this, do these people have a right to be in court? And secondly, is this basically an abridgment of the constitutional rights of gays in California. Both going to be hot issues.

BROWN: Yeah, is this a bit of a precedent, the first time the state has not decided to defend a voter-approved ballot measure?

MCELROY: No actually. We've seen this several times before. There was one, a measure that would have eliminating housing discrimination. The state passed a law, the Rumford Housing Act that banned racial discrimination in housing. A ballot measure was then put on the ballot and passed by voters that established the right to do that and the courts with a challenge, ruled that it was unconstitutional and threw it out and the state declined to defend the challenge, to defend the law, but not the ballot measure. So, the state has done this before. There also was a measure that would have banned school busing to deal with school segregation. And again, the state just said -- we don't want to defend this.

BROWN: Last issue over this thing, the Imperial County, just east of San Diego, also plays a role in this proposition 8 debate.

MCELROY: Yeah, it got a 70 percent "yes" vote down there. So it's fairly, pretty popular. And they were looking for some governmental organization that could come in and say, well, we're responsible for administering this, therefore we have legal standing. One of the criticisms in court was that they didn't even cite the county clerk as the party to the law suit. They cited an obscure deputy clerk in Imperial County as the party and the justices kind of jumped on that a little bit. They thought that was playing games.

BROWN: Speaking of playing games, the governor is running out of time. He's really close to stepping down from office, but yesterday he called a special legislative session to deal with the $6 billion budget hole that the state faces. Is this realistic? He's even calling for help from the new sworn-in legislature.

MCELROY: Well, he's certainty got fast action. I mean, I will say the legislature dealt very promptly with his call for it. They swore in the new members and immediately sent everybody home until January. So -- there's the fast response. What's really happening here, the legislators are going to sit back, they're going to wait for Jerry Brown to come up with an array of necessarily unpopular cuts and then they are going to grudgingly blame them on him and probably pass a chunk of them anyway because they aren't going to have much of an alternative.

BROWN: Doesn't sound like much new under the sun there Leo.

MCELROY: No, no. Some things stay the same forever.

BROWN: Nonpartisan Sacramento political consultant, Leo McElroy.

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