Chief Justice Tani Cantil-Sakauye said Wednesday that the state Supreme Court may decide “as soon as next week” whether to weigh in on the federal appeal of Proposition 8, the 2008 voter-approved ban on same-sex marriage.
Last month, a three-judge panel on the 9th Circuit U.S. Court of Appeals said it would not rule on the constitutionality of Proposition 8 until it gets a ruling from the California Supreme Court as to whether “Yes on 8” proponents of the initiative have an “authoritative” entitlement — or “standing” — to represent the voters who passed the initiative in the appeal in federal court.
In its 21-page order to the California Supreme Court, the 9th Circuit panel asked the state court to determine whether Yes on 8 proponents have “rights under California law … to defend the constitutionality of [Proposition 8] … when the state officers charged with the laws’ enforcement …refuse to provide such a defense.”
Former Governor Arnold Schwarzenegger and Attorney General Jerry Brown (now Governor) both declined to defend Proposition 8 in court, and refused to appeal the ruling when U.S. District Judge Vaughn R. Walker declared the initiative to be unconstitutional.
Walker did allow “Yes on 8” proponents to intervene in the trial as defenders of the measure. But the appeals panel indicated that standing in the district court does not necessarily mean “Yes on 8” has standing to appeal.
If the California Supreme Court weighs in, and determines the “Yes on 8” group does not have standing — namely, no right to appeal — and the 9th Circuit rules accordingly, then Walker’s August 4 decision will become the law throughout California, making it possible for same-sex couples to once again obtain marriage licenses.
However, the ruling on standing could still be appealed to the U.S. Supreme Court.
If the California court rules that initiative backers have special status under state law, then the 9th Circuit Court would be more likely to rule on the constitutionally of Proposition 8.
The panel on the 9th Circuit suggested last month it would have to dismiss the case if there’s no state high court input.