Yesterday, in Perry v. Schwarzenegger, the historic marriage equality case pending before the U.S. Court of Appeals for the Ninth Circuit, the court certified a question of state law to the California Supreme Court, effectively putting the federal appeal on hold for now.  This action by the Ninth Circuit was not a surprise.

As we explained in our post-argument analysis, here, one issue before the Court of Appeals in Perry is whether the proponents of Proposition 8, the ballot measure that amended the California Constitution to prohibit same-sex couples from marrying, have standing to appeal (that is, the right to appeal)  the district court’s ruling that Prop 8 violates the U.S. Constitution, since the state declined to defend Prop 8 and did not appeal the lower court’s ruling.  At oral argument on December 6, 2010, the three judges on the Ninth Circuit panel expressed concern that resolution of the issue of standing depends on an open question of California law, namely, the right of the proponents of a ballot measure to defend the measure’s constitutionality when the state will not do so.  The judges indicated they might certify that question to the California Supreme Court, a not uncommon procedure when the determination of a federal matter turns upon an open question of state law.  Accordingly, the Ninth Circuit yesterday certified the following question to the California Supreme Court:

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.

CAC filed a brief in this case urging the Ninth Circuit to affirm the district court’s ruling that Prop 8 is unconstitutional.  We have taken no position on the issue of standing.   However, we do hope that the California Supreme Court will follow the Ninth Circuit’s lead in acting expeditiously, as with each passing day, gay men and lesbians in California continue to be denied their constitutional right to marry the person of their choice.

Stay tuned to Text & History for the latest developments in this case.