By Lisa Leff
Associated Press
BERKELEY, Calif. (AP) — A federal appeals court says it cannot decide if California’s gay marriage ban is constitutional until the state’s highest court weighs in on whether Proposition 8’s sponsors have the authority to defend the measure.
A three-judge panel of the 9th U.S. Circuit Court of Appeals issued an order asking the California Supreme Court to decide if ballot proposition backers can step in to defend voter-approved initiatives in court when state officials refuse to do so.
The high court does not have to respond to the 9th Circuit panel’s order, but legal experts expect it will.
The panel suggested that without the state court’s input, it would have to dismiss the case.
“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 judges wrote.
The panel indicated during oral arguments last month that it might seek the state court’s guidance because the question of who is eligible to fight for Proposition 8 remains unsettled under both federal and California law.
After a San Francisco trial judge struck down the ban in August as a violation of gay Californians’ civil rights, former Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown both took the unusual step of refusing to appeal the decision.
“We are now convinced that proponents’ claim to standing depends on proponents’ particularized interests created by state law or their authority under state law to defend the constitutionality of the initiative,” the panel said. “We therefore request clarification in order to determine whether we have jurisdiction to decide this case.”
The panel also rejected attempts by officials from conservative Imperial County to intervene as alternate defendants.
If the state Supreme Court determines that the coalition of religious and conservative groups that sponsored Proposition 8 lack the prerogative to defend the measure, it is unclear
whether the ban would be unenforceable or remain in effect.
Lawyers for the two gay couples who successfully sued to overturn the ban in the lower court have argued that the trial judge’s decision overturning Proposition 8 would be binding statewide.
That would allow same-sex marriages to resume in California, but would remove the case from its long-assumed course to the U.S. Supreme Court, plaintiffs lawyer Theordore Olson said Tuesday.
Gay marriage opponents argue that if they are ineligible to appeal, the lower court decision would have to be vacated since they were allowed to defend Proposition 8 at trial.
If the 9th Circuit leaves the lower court decision in place, they could appeal to the U.S. Supreme Court on the standing issue.
“Politicians should not be able to nullify a democratic act of the people by refusing their duty to defend it,” Jim Campbell, a lawyer for the ban’s backers, said in a statement.
“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.”
Also Tuesday, Judge Stephen Reinhardt, who is handling the appeal along with Judges Michael Hawkins and N. Randy Smith, published a memo outlining his reasons for refusing to recuse himself from the Proposition 8 case.
Lawyers for the measure’s sponsors asked Reinhardt to step aside because his wife has been an outspoken supporter of same-sex marriage in her role as executive director of the Southern California chapter of the American Civil Liberties Union.
Reinhardt said he would have removed himself from the case if the ACLU of Southern California had been an active participant since it reached the 9th Circuit. But he said he did not consider the group’s participation in a friend-of-the-court brief submitted to the trial court sufficient evidence of a conflict of interest.
California voters passed Proposition 8 in November 2008. The measure, which amended the California Constitution to define marriage as a union between a man and a woman, overrode a California Supreme Court ruling from earlier that year that declared the state’s one man-one woman marriage laws unconstitutional.
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