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Tuesday, January 4, 2011

Ninth Circuit Asks California Supreme Court for Help in Determining Who Can Appeal Prop 8

By Brian Shields -

SAN FRANCISCO (KRON) -- The three judge panel deciding the constitutionality of Proposition 8, which banned same-sex marriage in California, is asking for help from the U.S. Supreme Court.

Ninth Circuit justices Stephen Reinhardt, Michael Hawkins, and Randy Smith say they need direction from California's high court in determining who has standing to appeal a lower court's ruling throwing out Prop 8.

"Because we cannot consider this important constitutional question unless the appellants before us have standing to raise it, and in light of Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (“Arizonans”), 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 Ninth Circuit justices wrote.  "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 certified question below."

State officials have refused to appeal Judge Robert Walker's decision that Proposition Eight is unconstitutional.  Supporter of the campaign to pass Prop 8 appealed the judge's decision to the Ninth Circuit.  The justices hear oral arguments on the matter in early December.

Whatever the Ninth Circuit decides, it seems likely the case will eventually end up before the United States Supreme Court.


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