Passing the Ball

More bumps along the long, long road to making gay marriage legal in the State of California. Yesterday, the Ninth U.S. Circuit Court of Appeals in San Francisco said it needed advice from the California Supreme Court as to whether or not the sponsors of a voter-approved measure banning gay marriage even have the right to defend it in court.

From the San Francisco Chronicle:

The state Supreme Court was brought into the fray by the Ninth U.S. Circuit Court of Appeals in San Francisco, which heard arguments last month about whether Proposition 8, the 2008 initiative outlawing same-sex marriage, is constitutional.

Then-Gov. Arnold Schwarzenegger and ex-Attorney General Jerry Brown refused to appeal a federal judge's ruling in August that the measure unconstitutionally discriminated based on sexual orientation and gender. So the future of the case depends on whether Prop. 8's sponsor, a conservative religious coalition called Protect Marriage, has legal standing - the right to represent the interests of the state and its voters.

If not, the federal appeals court could uphold Chief U.S. District Judge Vaughn Walker's ruling and restore same-sex marriage in California - legalized briefly by a 2008 state Supreme Court ruling - without deciding whether Prop. 8 is constitutional.

Without the state of California joining in on the appeal, the work was left to the conservative sponsors of Proposition 8. So for now, the question remains whether or not they have the right to represent the people of California.

Under separate cover, the same court denied standing to Imperial County, which had also sought to enter the same case and defend the ballot measure. In good news, the court said the county did not have the type of authority over marriage necessary to join the appeal. A no-brainer, in my book.

Needless to say, Project Marriage does not represent this citizen of California. And thank heavens the court denied standing to Imperial County – despite the fact that 70 percent of its voters supported Prop. 8.

When was the last time I said the constitutional rights of a minority should not be left to the will of the voters?