The long, winding road to resolving California’s law on gay marriage took another detour today when the federal appeals court considering the voter-approved ban asked the state Supreme Court to rule on the legal standing of ban backers.
The appeals court also ruled against Imperial County’s petition to join the case as a defendant, saying the issue was a state and not a federal matter.
The prohibition on gay marriage was passed as Proposition 8 in 2008, then ruled unconstitutional by U.S. District Judge Vaughn Walker. The appeals court then ordered the ban to continue until it ruled on the matter.
While the defendants – then-Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown – declined to appeal Walker’s ruling, Prop. 8 backers filed an appeal.
During arguments last month before the U.S. 9th Circuit Court of Appeals, the three-judge panel heard arguments over whether ban backers would suffer “injury” if the ban was overturned and so had the right to appeal.
If it’s determined that backers don’t have standing to appeal, Walker’s ruling would stand.
“Because we cannot consider this important constitutional question unless the appellants before us have standing to raise it, and in light of Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (“Arizonans”),” the court wrote in it’s order to the state court, “it is critical that we be advised of the rights under California law of the official proponents of an initiative measure to defend the constitutionality of that measure upon its adoption by the People when the state officers charged with the laws’ enforcement, including the Attorney General, refuse to provide such a defense or appeal a judgment declaring the measure unconstitutional.
“As we are aware of no controlling state precedent on this precise question, we respectfully ask the Supreme Court of California to exercise its discretion to accept and decide the certified question below.”
Both sides have said they expect the matter to be ultimately appealed to the U.S. Supreme Court.
Prop. 8 was approved by voters 52.5 percent to 47.5 percent.
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