The 9th Circuit Court of Appeals three-judge panel charged with examining the Proposition 8 court case asked the California Supreme Court on Tuesday to advise whether the defendant-intervenors in the case have standing under state law to appeal the federal court decision overturning the ban, a critical question in determining whether those defending the gay marriage ban can proceed.
As part of five documents released Tuesday, the court issued a request(.pdf) asking the lower court to help decide the issue, a part of which read:
Before this panel of the United States Court of Appeals for the Ninth Circuit is an appeal concerning the constitutionality under the United States Constitution of Article I, § 7.5 of the California Constitution (“Proposition 8”). 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”), 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.
In his original ruling, Judge Vaughn Walker raised concerns as to whether the defendant-intervenors, headed by the group Protect Marriage, have legal standing enough to even defend Proposition 8 before the 9th Circuit.
The state’s administration would usually defend the law in such cases, but the anti-gay marriage group intervened when both outgoing Gov. Arnold Schwarzenegger and new Gov. Jerry Brown, as the attorney general, declined to intervene because they believed the 2008 ballot measure which defined away the right to equal access to marriage for same-sex couples, was unconstitutional.
Although Protect Marriage was allowed to intervene during the original trial, as defendant-intervenors the right to defend the law at appeal was not automatically granted.
In accepting the case, the 9th Circuit Court of Appeals stated that the defendant-intervenors would have to prove their standing in order for the appeal to go ahead. The three-judge panel then heard arguments in December on both the constitutionality and standing of the federal appeal.
While the former group’s status remains in question, the 9th Circuit panel was also asked to consider whether those from Imperial County, represented by the Christian legal group Advocates for Faith and Freedom, had standing enough to appeal. It has been determined that they do not:
FILED PER CURIAM OPINION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) AFFIRMED; DISMISSED. The district court order denying the motion to intervene is AFFIRMED. Movants’ appeal of the district court order concerning the constitutionality of Proposition 8 is DISMISSED for lack of standing. The deadline for filing a petition for panel rehearing or rehearing en banc is hereby EXTENDED until the deadline for such petitions in No. 10-16696, which will be 14 days after an opinion is filed in that appeal. The Clerk is DIRECTED to stay the issuance of the mandate in this case until the mandate issues in No. 10- 16696. AFFIRMED in part; DISMISSED in part. FILED AND ENTERED JUDGMENT.  (RP)
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