Prop. 8 gay marriage case takes detour to California Supreme Court

Do gay couples have a constitutional right to marry? A US appeals court withholds judgment, instead asking California's Supreme Court to resolve whether Prop. 8 backers have legal standing to defend the gay marriage ban.

Eric Risberg/AP/File
Plaintiff Paul Katami, far left, reacts as he watches a protester carry a sign before a hearing in the Ninth Circuit Court of Appeals, Dec. 6, 2010, in San Francisco. A ruling by the court Tuesday asked California's Supreme Court to examine whether proponents of Proposition 8 have the necessary legal standing to defend the measure.

The most hotly disputed legal case in the country – the constitutionality of gay marriage – is taking a detour from a federal appeals court in San Francisco to the Supreme Court of California.

In a ruling on Tuesday, a three-judge panel of the Ninth US Circuit Court of Appeals did not issue an opinion on whether gay and lesbian couples possess a federal constitutional right to marry. Instead, the judges said it isn’t clear whether proponents of a statewide ban on same-sex marriage have the necessary legal standing to defend the measure in court.

The appeal stems from a federal judge’s ruling last year striking down the same-sex marriage ban, known as Proposition 8. The measure was defended at the trial level by then-Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown, who is now governor.

But after the federal judge struck the measure down, both Mr. Schwarzenegger and Mr. Brown declined to file an appeal.

Proposition 8 proponents, who were already involved in the litigation, took up the appeal.

In addition, a deputy clerk from Imperial County moved to intervene to defend the same-sex marriage ban.

In their ruling on Tuesday, the judges said the deputy clerk lacked standing to argue the appeal. But on the question of whether the Proposition 8 proponents qualify to wage the appeal, the appeals court asked the California Supreme Court to examine whether – under California law – they have the necessary legal standing.

“None of this means that ultimately there is no standing in this case,” Judge Stephen Reinhardt wrote in a concurrence.

US Supreme Court precedent in an Arizona case determined that proponents of an initiative in that state lacked legal standing under Arizona law to defend the measure in court. That decision is binding on the Ninth Circuit. But the question, according to the appeals court, is whether initiative proponents in California possess legal standing under California law to defend the constitutionality of a statewide initiative.

That is the question now directed to California’s highest court.

“Proponents advance a strong argument on this point,” Judge Reinhardt wrote. “Thus, in the end, there may well be standing to maintain this appeal, and the important constitutional question before us may, after all, be decided by an appellate court – ours, the Supreme Court, or both,” he said.

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