JURIST - Paper Chase: Ninth Circuit seeks guidance on same-sex marriage appeal from California high court

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Tuesday asked [order, PDF] the Supreme Court of California [official website] to weigh in on whether supporters of Proposition 8 [text, PDF; JURIST news archive], California's same-sex marriage ban, have standing to defend the measure when state officials have refused to do so. Judge Vaughn Walker of the US District Court for the Northern District of California [official website] struck down Proposition 8 [JURIST report] in August. Then-governor Arnold Schwarzenegger and former attorney general and current Governor Jerry Brown [official website] were originally defendants in the lawsuit, but they refused to continue defending the measure on appeal [JURIST report], leaving defendant-intervenors Project Marriage [advocacy website] and other groups to defend the law. The Ninth Circuit asked the Supreme Court to answer the following question:

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

If the court answers in the negative, the Ninth Circuit would likely dismiss the case, and it is unclear whether Walker's ruling would stand. The parties disagree as to what effect a dismissal would have, and the circuit court noted the issue but did not address it. Also Tuesday, the Ninth Circuit upheld [opinion, PDF] a lower court decision refusing to allow officials from Imperial County, California [JURIST report] to intervene, and Judge Stephen Reinhardt [FJC profile] issued a memorandum opinion [text, PDF] on his decision not to recuse himself [JURIST report].

The Ninth Circuit heard oral arguments [video; JURIST report] in the case, Perry v. Schwarzenegger [case materials] last month. The hearing was divided into two one-hour sessions, with the first section focusing on the issue of standing, and the second focusing on Proposition 8's constitutionality. In August, a three-judge panel for the Ninth Circuit issued a stay [JURIST report] on Walker's ruling, pending appeal.