A panel of the Ninth Circuit Court of Appeals announced Jan. 4 that it was asking the California Supreme Court to weigh in on the highly publicized Perry v. Schwarzenegger case, filed by two same-sex couples after they were denied marriage licenses because of the voter-approved Prop. 8, which overturned the state’s marriage-equality law.
The appellate court asked the state to advise it on whether the proponents of Prop. 8 should be permitted to defend the law in court. Protectmarriage.com was the prime sponsor of the measure and has defended the initiative throughout the suit, as both former Gov. Arnold Schwarzenegger and then-Attorney General (and now Gov.) Jerry Brown both declined to do so on behalf of the state.
The court said there is no precedent that would dictate whether the backers of a voter initiative have proper legal standing to intervene in the case.
“It is critical that we be advised of the rights under California law of the official proponents of an initiative measure to defend the constitutionality of that measure upon its adoption by the people when the state officers charged with the laws’ enforcement, including the attorney general, refuse to provide such a defense or appeal a judgment declaring the measure unconstitutional,” the justices stated in the order last week.
The appellate court did not give the state court a deadline by which to respond.
If the state finds that the defendants do have standing, the appellate court will then have to decide whether to uphold last summer’s lower-court finding that overturned Prop. 8 on constitutional grounds.
District Court Judge Vaughn Walker ruled in August that the measure violated the due-process and equal-protection constitutional rights of gays and lesbians.
The Prop. 8 backers appealed his decision and the appellate court issued a stay in the case, preventing same-sex marriages from resuming until it makes its own ruling.
The case is expected to eventually reach the U.S. Supreme Court.
In addition to asking for the state court’s involvement, the justices last week also denied the petition of an Imperial County deputy clerk to intervene in the case as a defendant.
Equality California executive director Geoff Kors said in a statement that his organization was “very pleased” that Imperial County was denied standing and that the court was giving consideration to the backers’ standing as well. He said supporters 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.”
Gays and lesbians were permitted to marry during a six-month span in 2008, before the November passage of Prop. 8: The nearly 18,000 same-sex marriages that took place during that window remain legal.
Jen Colletta can be reached at email@example.com.