|9th Circuit punts federal Prop 8 case to California Supreme Court|
|Imperial County defendant|
The federal case against California's Proposition 8 took an odd turn Jan. 4 when the 9th U.S. Circuit Court of Appeals punted the case to the California Supreme Court.
The federal court pronounced itself confused about whether the people who put Prop 8 on the ballot have legal "standing" to be at the federal appeals court defending Prop 8. The judges asked California's top court to take a look at state law and opine on that question.
The actual defendants in the case -- the governor, attorney general, two county clerks and state health-department officials -- have refused to defend the voter-passed constitutional amendment that re-banned same-sex marriage in California in 2008.
If the people who put Prop 8 on the ballot do not have a legal right to defend it before the 9th Circuit, then the federal District Court ruling that overturned Prop 8 last August likely would be allowed to take effect, bringing same-sex marriage back to California.
In its "Order Certifying a Question to the Supreme Court of California," the 9th Circuit judges explained: "Because we cannot consider this important constitutional question unless the appellants before us have standing to raise it ... 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. As we are aware of no controlling state precedent on this precise question, we respectfully ask the Supreme Court of California to exercise its discretion to accept and decide the ... question."
The California Supreme Court is not required to answer the question or otherwise help the 9th Circuit judges be less confused, but may well opt to do so.