9th Circuit delays ruling on Prop 8; asks California court about standing

A 9th Circuit U.S. Court of Appeals panel surprised many Proposition 8 observers Tuesday when it suddenly issued five documents relating to the case.

The bottom line of those documents is that the panel will not rule on the constitutionality of California’s constitutional ban on same-sex marriage until it gets a ruling from the California Supreme Court as to whether Yes on 8 supporters have an “authoritative” entitlement to represent the voters who passed the initiative.

The orders struck some as odd. It appears the federal court is asking a state court whether the parties that have appealed a lower federal court ruling that struck down Proposition 8 have “the rights under California law … to defend the constitutionality of that measure …. when the state officers charged with the laws’ enforcement …refuse to provide such a defense.”

The 21-page order released Tuesday said that having standing to defend Proposition 8 in federal district court does not necessarily guarantee that Yes on 8 proponents have standing in federal court. In one of several other documents released Tuesday, the panel denied an effort by Imperial County to gain standing to make the appeal.

Today’s development will, of course, delay the 9th Circuit panel’s decision on the merits of the case—whether voters can withhold marriage licenses from gay couples while granting them to straight couples.

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