In a key double ruling, 9th U.S. Circuit Court of Appeals judges on Tuesday rejected Imperial County's request to defend Proposition 8 in federal court – and asked the California Supreme Court for advice on whether the measure's private proponents should have that right.
The three-judge panel is weighing an appeal of a federal judge's decision last August that Proposition 8's same-sex marriage ban violates gay people's federal constitutional rights.
Before they can rule on the constitutional issues, however, the judges said they must settle whether ballot-measure proponents can legally step in and defend Proposition 8 in federal court if elected state officials won't.
Neither former Gov. Arnold Schwarzenegger nor former Attorney General Jerry Brown – now governor – chose to defend Proposition 8 in state or federal challenges.
Brown agrees with gay couples that the measure designates them as an unequal class of people.
U.S. Supreme Court opinions have doubted the authority of ballot-measure proponents to step in as self-appointed substitutes for state authorities.
The 9th Circuit judges noted a high court opinion that suggested private Arizona ballot measure proponents did not have a right to defend, in federal court, an English-only measure that state officials refused to defend.
To meet a constitutional threshold for standing, parties need to show they are personally injured by a decision or policy, or bear responsibility for carrying out a policy and face injury.
The judges said that Imperial County, represented by its Board of Supervisors and a deputy clerk, failed to meet those requirements.
"The board plays no role with regard to marriage, which is 'a matter of statewide concern' rather than a 'municipal affair,' " the judges found.
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