By Neal Broverman
Originally published on Advocate.com January 04 2011 4:05 PM ET
The ninth circuit court of appeals is asking the California supreme court to advise on whether antigay groups have standing to appeal a federal judge's decision that struck down Proposition 8.
In documents released on the ninth circuit's website, the federal appeals court indicates it isn’t certain if groups like Protect Marriage have standing to pursue an appeal, since the current governor and attorney general of California are declining to defend the initiative, which narrowly passed in November 2008.
Both Gov. Jerry Brown and Atty. Gen. Kamala Harris support the August 2010 ruling of Vaughn Walker, which declared the antigay measure unconstitutional (the previous governor and attorney general, Arnold Schwarzenegger and Jerry Brown, respectively, took the same position).
A three-judge panel of the ninth circuit heard arguments in December related to both constitutionality and appellants’ standing.
"Having considered the parties’ briefs and arguments, we are now convinced the Proponents’ claim to standing depends on Proponents’ particularized interests created by state law or their authority under state law to defend the constitutionality of the initiative, which rights it appears to us have not yet been clearly defined by the Court," judges state in the website documents. "We therefore request clarification in order to determine whether we have jurisdiction to decide this case."
The ninth circuit did deny standing to officials in California's Imperial County — that county's board of supervisors and a deputy clerk hoped to intervene in the federal challenge to Proposition 8 and defend the initiative.
"Imperial County and the initiative proponents play different roles," says Jennifer Pizer, national marriage project director for Lambda Legal. "They — the Prop. 8 proponents who say they worked hard on the initiative and a deputy clerk in Imperial County who says she would be affected by [marriage equality] — have different claims of interest. The fact that it was a deputy — if it had been the actual clerk, I think it would have been a harder question."
The question of standing for the antigay groups will likely be taken up by the entire supreme court rather than the chief justice, Pizer says. "[An answer] is likely to be months, not weeks, but it won't be years either," she says.
Click here to view the court documents.