A federal appeals court on Tuesday
asked the California Supreme Court to weigh in on whether proponents
of Proposition 8, California's gay marriage ban, have legal standing
to defend it in court.
The Ninth U.S. Circuit Court of Appeals
in San Francisco heard oral arguments in the case in early December.
8 backers appealed U.S. District Judge Vaughn R. Walker's August
ruling that found the law to be unconstitutional.
The named defendants in the case –
Arnold Schwarzenegger, as governor, and Governor Jerry Brown, as
attorney general – refused to defend the law in court prompting
ProtectMarriage.com, the conservative group that put Proposition 8 on
the ballot, and Imperial County to step in.
The three-judge panel said that it
“cannot consider this important constitutional question” until it
resolves the issue of legal standing.
Ted Olson, a lawyer for the plaintiffs,
said Tuesday that proponents do not have the standing to defend the
“We are confident that the California
Supreme Court will answer those questions fully and expeditiously
given the vital importance of this case to hundreds of thousands of
Californians who are being discriminated against daily by the
existence of proposition 8,” Olson said in a conference call to
“Every day that goes by Proposition 8
inflicts immeasurable and incalculable damage on California citizens,
including thousands of innocent children,” he added.
Doug NeJaime, an associate professor
who teaches Family Law & Sexuality at Loyola Law School in Los
Angeles, called the ruling a delay.
“[R]ather than get to the merits of
the question – whether California's denial of the right to marry to
same-sex couples violates federal equal protection and due process
principles – the panel dealt with threshold questions of standing,”
wrote at the school's blog.
In a separate order, the panel affirmed
the district court's denial of Imperial County's motion to intervene
in the case, saying it lacked legal standing.
During its televised hearing, the
court hinted that it was inclined to uphold the lower court's ruling.
But in his concurring opinion Stephen
R. Reinhardt, considered the court's most liberal judge, said
proponents of Proposition 8 “have a strong argument” on legal