The state's highest court, which has considered the issue twice in the last three years, was drawn back into the fray by a panel of federal appeals court judges. The panel asked 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 Proposition 8 violates the U.S. Constitution because it deprives same-sex couples of equal protection under the law. Former Gov. Arnold Schwarzenegger and then-Atty. Gen. Jerry Brown declined to appeal Walker's ruling, accepting his decision to strike down the ban.
The groups that originally placed Proposition 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 would probably 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 probably seek further review by the U.S. Supreme Court.
During oral arguments in December, 9th Circuit Judges Stephen Reinhardt, Michael Daly Hawkins and N. Randy Smith indicated that 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 the California Constitution is something for the state Supreme Court to determine.
How long the California high 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 Proposition 8, urged the state 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."
Campbell said Proposition 8 supporters "remain confident that the right of the people of California to protect marriage in their constitution will ultimately be honored."
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 to 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 Proposition 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.
George's successor, former state appeals court Judge Tani Cantil-Sakauye, has declined to state her views on gay marriage.
The rules regarding who has standing have been made steadily tougher over the last several decades by conservative judges — an irony in the current case since it is conservative legal groups that are battling to establish standing. Reinhardt, who is 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," Reinhardt wrote, urging the state high court to decide the standing issue quickly.
Separately, the appeals court panel also rejected an attempt by Imperial County officials to defend the same-sex marriage ban. Imperial County's deputy clerk had sought to appeal Walker's ruling. But the judges rejected that effort, saying regulation of marriage laws is a matter for the state, not individual counties.
Equality California, one of the gay rights groups that has backed Walker's ruling, praised the appeals court's orders.
"We are optimistic that the case will be dismissed, marriage equality restored and that same-sex couples and their families will finally enjoy equality and dignity under the law," said the group's executive director, Geoff Kors.