January 4, 2011 at 3:30 pm EST | by Lou Chibbaro Jr.
Prop 8 sent to Calif. Supreme Court

The Ninth Circuit U.S. Court of Appeals today sidestepped a ruling on whether California’s ban on same-sex marriage violates the U.S. Constitution and sent a lawsuit seeking to overturn Proposition 8 to the California Supreme Court.

In a decision handed down by a three-judge panel, the Ninth Circuit appeals court said it was not qualified to decide whether supporters of Proposition 8 have legal standing to appeal an earlier ruling by a federal judge that Prop 8 violates the U.S. Constitution and must be struck down.

However, the three-judge panel upheld the decision by U.S. District Court Judge Vaughn Walker that officials with Imperial County, Calif., lack standing to intervene in the case on behalf of the state.

The legal standing issue surfaced when former California Gov. Arnold Schwarzenegger and then state Attorney General Jerry Brown, now the governor, refused to defend Prop 8 against a lawsuit brought by two same-sex couples.

The private citizens who organized Prop 8 were allowed to intervene on its behalf during the district court proceedings, including a civil trial, but gay rights attorneys challenging the ballot measure on appeal argued that only the state could defend the measure because it was a state law.

During the Ninth Circuit hearing of oral arguments on the case last year, the three judges divided the proceeding between the issue of legal standing and the issue of the merits of whether Prop 8 violates the U.S. Constitution.

They also heard arguments by attorneys defending Prop 8 that Imperial County, Calif., officials, including the Board of Supervisors and a deputy clerk who presides over civil marriages, should be allowed to intervene in the case on behalf of Prop 8.

“We affirm the denial of the intervention motion, although on different grounds from those relied upon by the district court, and correspondingly we dismiss the appeal on the merits for lack of standing,” the Ninth Circuit ruling says.

“The decision, of course, does not affect the standing or the separate appeal of the official proponents of Proposition 8,” the ruling says.

In discussing its decision to send the jurisdictional question to the California Supreme Court, the Ninth Circuit judges stated, “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 gave attorneys defending Prop 8 time to file for an “en banc” rehearing of the case before the full Ninth Circuit Appeals Court.

The decision to send the case to the state Supreme Court means the final outcome of whether same-sex marriage is protected under the U.S. Constitution is delayed several months for the Ninth Circuit court. All parties following the case agree that the U.S. Supreme Court will make the final decision in the case since both sides say they will appeal a losing decision to the high court.

Lou Chibbaro Jr. has reported on the LGBT civil rights movement and the LGBT community for more than 30 years, beginning as a freelance writer and later as a staff reporter and currently as Senior News Reporter for the Washington Blade. He has chronicled LGBT-related developments as they have touched on a wide range of social, religious, and governmental institutions, including the White House, Congress, the U.S. Supreme Court, the military, local and national law enforcement agencies and the Catholic Church. Chibbaro has reported on LGBT issues and LGBT participation in local and national elections since 1976. He has covered the AIDS epidemic since it first surfaced in the early 1980s. Follow Lou

  • Dan

    “…gay rights attorneys challenging the ballot measure on appeal argued that only the state could defend the measure because it was a state law.” To be clear, Olson and Boies are arguing that Proponents cannot appeal, not that they couldn’t defend the law at all. Proponents have already defended the law and lost.

  • customartist

    Why would there be a higher standard for proving standing for the Appellate Court than there was for the Lower Court?

    If the Proponents had standing to bring the suit originally, then why wouldn’t they have equal standing to appeal the rezulting ruling?

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