The 9th Circuit Court of Appeals has turned to the California Supreme Court to decide whether sponsors of an amendment that bans same-sex marriage have the right to defend it in court.
The question was referred to the state's highest court on Tuesday, a month after arguments on Proposition 8 were heard in the appeals court.
Before even deciding on the constitutionality of the voter-approved amendment that defines marriage as between one man and one woman, the three-judge panel of the 9th Circuit said it needs to resolve the issue of legal standing.
Jim Campbell, an Alliance Defense Fund litigation counsel, argues that Protectmarriage.com should be able to defend the measure that was passed by 52 percent of voters in 2008.
"Politicians should not be able to nullify a democratic act of the people by refusing their duty to defend it," he said in a statement. "The people of California have the right to be defended, and thus the official proponents of Proposition 8 must have standing to defend that law."
Last August, U.S. District Judge Vaughn Walker ruled Proposition 8 to be unconstitutional, saying that moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians.
Protectmarriage.com's legal team appealed the federal judge's decision. But California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown declined to defend the measure and requests by Protectmarriage.com to order the California officials to appeal the ruling were denied.
Protectmarriage.com, which led the "Yes on 8" campaign, and Imperial County were left to defend the measure.
On Tuesday, the 9th Circuit said it "would appear to be ill-served" if elected officials could nullify a voter-approved measure by refusing to defend it, as reported by The San Francisco Chronicle. But the three-judge panel said the state law is unclear and it needs the California Supreme Court to help decide on the legal standing of Protectmarriage.com.
The appeals court denied standing to Imperial County.
The referral to the state high court could delay a decision on the case for months.
Meanwhile, Stephen Reinhardt, a California liberal appointed by President Carter, explained on Tuesday why he has not recused himself from the case. Proponents of Proposition 8 asked him to disqualify himself because of his wife's active opposition to the amendment as executive director of the Southern California office of the American Civil Liberties Union.
He said his wife's views are her own and "cannot be imputed to me."
The California Supreme Court legalized gay marriage in May 2008. Proposition 8 was passed months later, overturning the court decision. The measure was taken to the state high court which decided in 2009 to uphold the amendment. The 18,000 gay and lesbian marriage that took place between May and the November vote were left intact.
Top litigators Theodore B. Olson and David Boies filed a lawsuit in federal court that year on behalf of two same-sex couples, arguing that Proposition 8 violates the U.S. Constitution's guarantees of equal protection and due process of the law. Walker ruled in their favor last year. An appeal to Walker's ruling is now before the 9th Circuit. Both sides are, meanwhile, expected to appeal the ruling if the decision is not in their favor.