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Appellate court asks California Supreme Court to weigh in on gay-marriage ban

By Jerry Markon
Washington Post Staff Writer
Tuesday, January 4, 2011; 8:35 PM

A federal appeals court in California on Tuesday took the unusual step of asking a state court to decide a key legal question before it considers whether the state's ban on same-sex marriage violates the U.S. Constitution.

The U.S. Court of Appeals for the 9th Circuit sought the input of the California Supreme Court on whether proponents of the ban, known as Proposition 8, have the legal standing to defend it in court. The question lies at the heart of the case because California officials had declined to defend the measure, as is customary when laws are challenged.

A federal judge in August struck down the voter-approved ban as unconstitutional, and proponents of Proposition 8 are seeking to appeal that ruling to the 9th Circuit. The case comes amid a broader national debate over gay rights and is widely expected to end up at the U.S. Supreme Court.

A three-judge panel of the 9th Circuit held nationally televised arguments last month on the merits of Proposition 8, but said Tuesday that it "cannot consider this important constitutional question" until it resolves the issue of legal standing. Because California law is unclear, the judges said, "it is critical" that the California Supreme Court decide that issue. Lawyers involved in the case said the state court is expected to do so. Theodore B. Olson, an attorney for plaintiffs seeking to overturn Proposition 8, said the 9th Circuit would be bound by the decision.

It is unclear how long the 9th Circuit's move will delay the case, which featured the nation's first federal trial on same-sex marriage and is being closely watched by gay rights activists and legal observers. Legal experts said the 9th Circuit's request for advice was essentially procedural and that the federal appeals court is likely to ultimately decide the constitutionality of Proposition 8. They said Tuesday's developments do not necessarily benefit either side.

"There are certainly justifiable reasons that weigh in favor of allowing such a controversial decision to be appealed,'' said R. Richard Banks, a professor at Stanford Law School. He said that it is unusual for a federal court, which has its own rules on appeals, to seek guidance from a state court and that the judges were probably reacting to political sensitivities.

"The last thing you want is a sense that some federal judges came in and hijacked the state and required it to recognize same-sex marriage when the people didn't want to,'' Banks said.

One of the three 9th Circuit judges, Democratic appointee Stephen R. Reinhardt, indicated in a concurring opinion Tuesday that the court is likely to decide the constitutional merits of Proposition 8.

He said that proponents of the same-sex-marriage ban "have a strong argument" on legal standing and that "there may well be standing to maintain this appeal.'' Saying that "the American people have a substantial interest" in the case, Reinhardt added: "Oral argument before this court was viewed on television and the Internet by more people than have ever watched an appellate court proceeding in the history of the nation.''

Olson said Tuesday that proponents of the ban do not have the standing to defend it and that the 9th Circuit should dismiss the appeal. Olson, a longtime conservative legal luminary, formed an odd-couple partnership with liberal trial lawyer David Boies in taking on the ban.

"We are confident that the California Supreme Court will answer these questions fully and expeditiously, given the vital importance of this case to hundreds of thousands of Californians who are being discriminated against daily by the existence of Proposition 8,'' Olson said in a conference call with reporters.

A lawyer for proponents of Proposition 8 did not return telephone calls seeking comment on Tuesday.

If it is determined that the proponents do not have the standing to appeal the lower-court ruling, it is unclear where that would leave the marriage ban. Olson said the court would have to dismiss the appeal, meaning that same-sex marriage would be legal in California along with five other states and the District.

But proponents of Proposition 8 have argued that if they cannot appeal, the 9th Circuit should vacate the lower-court ruling, which would leave the ban in place.

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