The question before the California Supreme Court is whether there is any authority under California law that would enable “Yes on 8” proponents to represent voters who approved Proposition 8, the state’s ban on same-sex marriage.
The question was posed by an appeals panel on the 9th Circuit Court of Appeals on Jan. 4.
Without any authority under state law, the panel suggested, the group might not have any “standing” at all to appeal the decision. If a party has “standing,” they are sufficiently affected by a conflict to justify having a court hear their lawsuit or appeal on the matter.
On Feb. 16, the California Supreme Court agreed to weigh in on the standing issue, and said it would make a ruling on whether Yes on 8 proponents have authority, under California law, to appeal a federal court ruling that the voter-appr is unconstitutional.
Theodore Olson and David Boies, the attorneys representing the two same-sex couples fighting Proposition 8, had asked the Supreme Court to move up its schedule for briefing and oral arguments, which will not be held before September.
Also on Tuesday, California’s Attorney General Kamala Harris, urged the federal appeals court to lift a stay and permit same-sex unions to resume while it considers the appeal.
In related news, the elected clerk of Imperial County, Calif., filed a motion last week to intervene in the ongoing proceedings over Prop 8.
The filing follows the 9th U.S. Circuit Court of Appeals’ rejection of a similar request for standing in the case made by the county’s Board of Supervisors and an unelected deputy clerk.
On the day the 9th Circuit panel deferred the question of “standing” to the California court, it issued a 16-page opinion that Imperial County itself did not have standing to appeal the district court decision itself.
The three-judge panel found that “because the county simply administers the state’s marriage law, it does not have any ‘interest on its own’ to defend.”
The issue of “standing” has been a central issue in the appeal because because former Gov. Arnold Schwarzenegger and former Attorney General Jerry Brown (now Governor) both refused to defend Prop 8, leaving its opponents to seek authority to appeal the federal court’s decision.