At issue is whether ProtectMarriage.com -- the group that sponsored Prop 8 -- has what is called "legal standing" to defend Prop 8 in federal court. If it doesn't, then the case would be dismissed and the court would have to determine whether the lower court ruling that reversed Prop 8 was legitimate. But if ProtectMarriage.com is found to have legal standing, then the case can go forward and the appeals court will rule on the larger issue of "gay marriage" legalization.
The question of legal standing became a legitimate one when former California Gov. Arnold Schwarzenegger and then-California Attorney General Jerry Brown -- who have the duty under state law to defend laws -- chose not to defend Prop 8 in court. ProtectMarriage.com became the primary defendant.
Passed by voters in 2008, Prop 8 amended the state constitution to define marriage as between one man and one woman. If the ruling overturning it is upheld by the U.S. Supreme Court -- which is not yet involved -- then "gay marriage" likely would be legalized in all 50 states.
In its Jan. 4 order, a three-judge panel for the U.S. Ninth Circuit Court of Appeals asked the California Supreme Court to decide whether under the state constitution or state law the "official proponents of an initiative measure" can defend the measure "when the public officials charged with that duty refuse to do so." The panel heard oral arguments in the case in December.
"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 ...," the Ninth Circuit order read.
The panel said it was unaware of any "controlling state precedent on this precise question."
The panel stayed the case until the California Supreme Court submitted its answer.
Groups that support Prop 8 expressed frustration at the prospect they might lack legal standing but confidence their side would prevail.
"Politicians should not be able to nullify a democratic act of the people by refusing their duty to defend it," Alliance Defense Fund attorney Jim Campbell said. ADF has helped defend Prop 8. "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. Otherwise, the governor and attorney general will succeed in indirectly invalidating a measure that they had no power to strike down directly. With this recent development, the Alliance Defense Fund and the rest of the Protectmarriage.com legal team remain confident that the right of the people of California to protect marriage in their constitution will ultimately be honored."
In a separate ruling Jan 4, the Ninth Circuit panel denied legal standing to Imperial County, which had sought to intervene in defense of Prop 8. Prop 8 backers had hoped the court would side with the county.
Supporters of the traditional definition of marriage warn that "gay marriage" legalization will negatively affect all of society, impacting everything from the tax-exempt status of religious organizations, to the way private businesses are operatedm to what is taught in elementary schools.
Michael Foust is an assistant editor of Baptist Press.
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