Prop 8 Case:

Appeals Court Asks CA Supreme Court For Help

Rachel Slajda | January 4, 2011, 3:14PM

A federal appeals court has asked the California Supreme Court to help answer a question about who has standing to fight same sex marriage in the courts.

At issue is whether the anti-gay groups who put Proposition 8 on the ballot in California have the legal standing to appeal a decision that Prop 8 -- which outlaws same sex marriage in the state -- is unconstitutional. Today, the Ninth Circuit Court of Appeals, which is hearing that appeal, asked the California high court to decide whether the proponents have standing under state law.

It's not a surprising move. The three judges on the federal court's panel suggested that they might ask the state's Supreme Court to rule on standing during a hearing on Dec. 6.

If the California Supreme Court rules that the proponents have no standing, the case is all but over in the appeals court. Why? Because the same sex couples who brought the original suit are fighting a state law, the appellants would, normally, be the governor and attorney general of the state.

But Gov. Arnold Schwarzenegger, who left office today, refused to appeal the decision. So did Jerry Brown, the then-attorney general who succeeded Schwarzenegger as governor. The new attorney general, Kamala Harris, has also shown no interest in fighting for Prop 8 to continue.

Another party who argued that they had standing to fight for Prop 8, the deputy county clerk of Imperial County, will not be able to take part in the appeal. The Ninth Circuit ruled today that the deputy clerk has no legal standing in the case.