Prop. 8 detour to state court could delay case or result in dismissal of appeal 

A federal appeals court in San Francisco today sent a key question in a challenge to Proposition 8 to the California Supreme Court.

A three-judge panel of the 9th U.S. Circuit Court of Appeals asked the state high court to decide whether California law gives the sponsors of the measure the legal standing, or right, to appeal a lower federal court decision that struck down the measure.

The standing issue arose because former Gov. Arnold Schwarzenegger and former state Attorney General and now-Gov. Jerry Brown declined to defend the 2008 voter-approved ban on same-sex marriage against a civil rights lawsuit.

The state officials were the original defendants in the federal lawsuit filed in 2009 by two same-sex couples.



The detour of the case to the state court could delay a final federal court ruling in the case for at least several months.

In addition, if the state court concludes that the proposition's sponsors and their committee, Protect Marriage, have no right to appeal, the federal court could dismiss the appeal.

A dismissal would leave in place an August ruling in which U.S. District Judge Vaughn Walker of San Francisco said the measure violated the federal constitutional rights to equal treatment and due process.

The federal appeals panel wrote, "This court is obligated to ensure that it has jurisdiction over this appeal before proceeding to the important constitutional questions it presents, and we must dismiss the appeal if we lack jurisdiction."

The panel also said, "We agree to accept and follow" the state high court's decision on standing.

Theodore Olson, a lawyer for the plaintiffs, said dismissal of the appeal would mean that in California, "The district court opinion that holds Proposition 8 unconstitutional is the law of the land."

But if the California Supreme Court concludes that the sponsors do have a right to appeal, the case would go back to the federal appeals court, which would then decide whether the 2008 voter initiative is constitutional.

Its eventual decision could be appealed to the U.S. Supreme Court.

Protect Marriage attorney Andrew Pugno said, "We urged the 9th Circuit to pose this question to the California Supreme Court if they had any doubt about our standing, and we are gratified that they have done so.

"This gives the state Supreme Court an opportunity to clearly reaffirm the right of official proponents to legally defend voter-passed initiatives they successfully enact, particularly when public officials abdicate their constitutional duties by refusing to enforce and defend the law."

Another lawyer for the sponsors, Jim Campbell of the Arizona-based Alliance Defense Fund, said, "Politicians should not be able to nullify a democratic act of the people by refusing their duty to defend it.

"The people of California have the right to be defended, and thus the official proponents of Proposition 8 must have standing to defend that law."

After the state officials declined to defend Proposition 8 at a non-jury trial in Walker's court last year, he allowed the sponsors to step in to defend it. But in his final ruling in August, the judge said it was "doubtful" they had standing to appeal because, according to Walker, they didn't prove at the trial that they would be hurt by the overturning of Proposition 8.

After the appeal was filed, the 9th Circuit panel said it would consider both the standing issue and the constitutionality of Proposition 8.

The panel -- made up of circuit judges Stephen Reinhardt of Los Angeles, Michael Hawkins of Arizona and Randy Smith of Idaho - held a hearing in San Francisco on both issues last month.

In today's order, the panel said a 1997 U.S. Supreme Court decision on an Arizona initiative suggested that sponsors do not have the standing under federal law to defend a measure when state officials decline to do so.

Thus, it would be up to the California Supreme Court to say whether standing exists under state law, the panel said.

The federal circuit court's request to the state high court to decide a California law issue is rare but well established under the two courts' procedures.

In a separate decision today, the federal appeals court turned down a bid by Imperial County, its board of supervisors and a deputy county clerk to be allowed to join the case to defend the initiative.

The panel said that because marriage laws and procedures are statewide matters, the local officials did not have a "protectible interest" that would enable them to appeal.

The decision rejecting Imperial County's request to become an official party can be appealed in the federal court system, but is not among the questions sent to the California Supreme Court.

Kate Kendell, executive director of the San Francisco-based National Center for Lesbian Rights, said, "Today's ruling is a significant and positive step. The 9th Circuit not only rejected Imperial County's attempt to intervene, it also recognized that if the group that placed Proposition 8 on the ballot does not have standing, the case is over."

Proposition 8, enacted by voters as a state constitutional amendment in November 2008, mandates that "only marriage between a man and a woman is valid in California."

The measure overturned a decision in which the California Supreme Court said in May 2008 that the state Constitution provided the right to gay and lesbian marriage.

The lawsuit challenging Proposition 8 was filed by Kris Perry and Sandy Stier of Berkeley and Paul Katami and Jeff Zarrillo of Burbank.

Walker's ruling striking down the initiative has been put on hold during the appeal process.

The standing question may be among the first issues tackled by Tani Cantil-Sakauye, the new chief justice of the seven-member state Supreme Court. She took office on Monday.

Cantil-Sakauye's predecessor, now-retired Chief Justice Ronald George, took a leadership role in previous same-sex marriage cases before the court.

George wrote the majority opinion in the court's 4-3 decision in 2008 that found the state constitutional right to same-sex marriage.

A year later, George was the author of the 6-1 majority opinion that upheld voters' prerogative to change the state Constitution by means of an initiative to eliminate that right.

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