LOS ANGELES -- The legal status of same-sex marriage headed back toward the California Supreme Court on Tuesday for a ruling that could resolve the future of voter-passed Proposition 8, which was backed by many Church of Jesus Christ of Latter-day Saints members.
The state's highest court, which has considered the issue twice in the past three years, was drawn back into the fray by a panel of federal appeals court judges asking for guidance on the seemingly technical, but perhaps decisive, issue of who has the legal right to defend the ballot initiative on appeal, what is known in court as "standing."
In August, U.S. District Judge Vaughn Walker ruled that Prop 8 violates the U.S. Constitution because it deprives same-sex couples of equal protection under the law. Former Gov. Arnold Schwarzenegger and then- Attorney General Jerry Brown declined to appeal Walker's ruling, accepting his decision to strike down the ban.
The groups that originally placed Prop 8 on the November 2008 ballot have asked the courts to allow them to pursue the appeal in place of the state officials. The initiative represents the will of the people, they argue, and should not be struck down with no one to defend it.
If those groups are found to lack standing to appeal, then Walker's decision, which is on hold, would take effect with no review by any appellate court. That likely would allow same-sex marriages to resume in California.
By contrast, if the backers of the initiative do have standing, the appeals court panel would rule on the constitutional issues raised by Walker, and whichever side lost would likely seek further review by the U.S. Supreme Court.
During oral arguments in December, 9th U.S. Circuit Court of Appeals judges Stephen Reinhardt, Michael Daly Hawkins and N. Randy Smith indicated they were uncertain whether California law gives private groups the standing to appeal.
In Tuesday's order, they asked the state Supreme Court to provide guidance on the question of whether the sponsors of an initiative have "the authority to assert the state's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative ... when the public officials charged with that duty refuse to do so."
The judges appeared uncomfortable with the idea that the case could end on such a technical issue as standing. If the backers of the initiative cannot appeal, the governor could "effectively veto the initiative by refusing to defend it or appeal a judgment invalidating it," the judges said.
The state's initiative process "would appear to be ill-served" by that result, they said, but added that whether that outcome is proper under California's constitution is something for the state Supreme Court to determine.
How long the California Supreme Court might take to issue a ruling -- or even whether the court will agree to make a decision on the question -- remains unclear.
Lawyers for ProtectMarriage.com, a main backer of Prop 8, urged the justices to recognize their right to appeal.
"Politicians should not be able to nullify a democratic act of the people by refusing their duty to defend it," said Alliance Defense Fund Litigation Counsel Jim Campbell.
"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. Otherwise, the governor and attorney general will succeed in indirectly invalidating a measure that they had no power to strike down directly."
In the California Supreme Court's last two rulings on same-sex marriage, each side has won once. In May 2008, the seven justices ruled 4-3 that the state constitution gave same-sex couples the same right to marry that opposite-sex couples have. That ruling, written by former Chief Justice Ronald M. George, was overturned by Prop 8. A year later, George joined a 6-1 majority that ruled that voters had the right under the state constitution to pass the proposition.
The rules regarding who has standing have been made tougher over the past several decades by conservative judges -- an irony in the current case since it is conservative legal groups that are battling to establish standing.
Reinhardt, widely considered among the most liberal judges on the 9th Circuit, noted that fact in a separate opinion expressing frustration that he and the other two 9th Circuit judges could not yet consider the substance of the case.
The "trend in our judicial system over the past few decades ... emphasizes technical rules over deciding cases on the merits, and indeed over the merits themselves," he wrote. "Oral argument before this court was viewed on television and the Internet by more people than have ever watched an appellate court proceeding in the history of the nation."
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