9th Circuit Asks California’s Supreme Court to Advise Whether Prop 8 Backers Can Appeal

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. [7598965] (RP)

You can read more on Judge Walker’s original ruling here.

Photo used under the Creative Commons Attribution License, with thanks to angela n.


Barbara Erdman
Barbara Erdman7 years ago


Kathleen D.
Kathleen D7 years ago

The legal authorities who are holier than thou and talk religion have only to ask; what would Jesus do? Jesus never talked about gays. He was too busy healing the sick and feeding the poor. Matters of which the Republicans care far too little.

Tom Y.
Tom Y7 years ago

Prop 8 backers should have that opportunity to repeal. They are, after all, upholding the will of the majority in California! This should never have gone as far into bench politicking as it has...

Nena Aragon
Nena Aragon7 years ago

Although I agree with others that this is a no-brainer, the move by the 9th circuit is a shrewd one (I mean that in a positive way). If all "i's" are dotted and "t's" are crossed on the standing issue, and the anti-gay marriage complainants are found not to have standing, then this is the only issue on which appeal to the U.S. Supreme Court can be made. Such a case likely would not be heard by the Supreme Court, which would mean that the federal judges opinion on Prop 8 would stand. This would establish a firm precedent that likely would help other states.

Jayna W.
Jayna W7 years ago

They are probably afraid of losing their jobs like the three Iowa judges who ruled that such a law is unconstitutional. So they pass it over to the State Supreme Court. Pontius Pilate could take lessons from these judges. This is not about the constitution. This is all about religious bullying. When will people stand up to these religious bullies? I know that I would never let anyone run over me like that.

Marilyn L.
Marilyn L7 years ago

It's getting old.

William Y.
William Y7 years ago

As I have said in other posts, Religion belongs in churches, mosques & synagogues, not in public life or government. Keep your religious views & beliefs to yourselves and all will be better off.

Christopher Fowler

So it is written; so it shall be done.

Basically the Dominion Christians want to legislate away the rights of others. If they are allowed to do that, then they could ban the rights of people to practice their own religion, then the right to divorce, then the right to free speech, etc, etc, until the only rules that can be enforced are the rules set down by the church, such as a return to blasphemy laws.

Hey Christians: Keep your religion out of our civil rights; it does not belong in our laws.

pam w.
pam w7 years ago

As it should be! And...as it WILL be!

David P.
David P7 years ago

Oh, good grief! Get *on* with it. Any amount of legal obfuscating jargon can't cover up the fact that all citizens are guaranteed equal rights. *All* citizens. It's really just that simple.

An old drag queen friend of mine used to end her show by yelling out over the applause, "Remember! It isn't who you love or how you love--only *that* you love!"

Restore those rights to California gay couples NOW! This is a tri-partite Republic, created in large measure to protect minorities from the Tyranny of the Majority. And Tyranny shall not and will NOT stand!