In the order staying the District court order, the Ninth circuit concluded their order by stating:
"In addition to any issues appellants wish to raise on appeal,
appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997)." (emphasis added)
The article below further discusses why the Court of Appeals may not even get to the merits of the appeal when it reaches its decision.
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California gay marriage case hangs on technicality
(Reuters) - The next stage of California's gay marriage court battle rests on a procedural issue that could halt the case, leaving same-sex unions legal in California without a Supreme Court ruling to guide the nation.
A San Francisco federal judge struck down the California same-sex marriage ban known as Proposition 8 earlier this month, and the case was immediately appealed to the federal Ninth Circuit Court of Appeals.
On Monday, those appellate judges set a hearing for December and put gay marriages on hold pending appeal.
They made only one comment relating to legal issues, asking the pro Prop 8 team to say why the case should not be dismissed due to lack of standing -- a term for the right to appeal.
Strictly speaking, the California state government would be the proper body to represent the pro-Prop 8 case, but neither the governor nor the attorney general is willing to pursue it. The defense of the ban was so far made by an independent group that must prove its right to appeal.
The appeals court will make its decision on standing as the first step in its ruling on the case after the December hearing. If it decides that the Prop 8 proponents don't have standing, the judges won't even look at the main argument, following standard judicial policy of making rulings as narrow as possible.
Proposition 8 passed in November 2008, unleashing a nationwide furor as liberals wondered how the trend-setting state could fall in line with the roughly 40 others that ban same-sex unions and social conservatives boasted their cause truly had national backing.
That sparked the federal court case, with a very unusual twist -- the state defendants, Governor Arnold Schwarzenegger, a Republican, and Attorney General Jerry Brown, a Democrat, did not defend the ban and will not appeal the pro-gay-marriage decision.
Federal District Court Chief Judge Vaughn Walker has questioned whether the group which defended the ban can appeal on its own.
"As it appears at least doubtful that (Prop 8) proponents will be able to proceed with their appeal without a state defendant, it remains unclear whether the court of appeals will be able to reach the merits of proponents' appeal," he wrote.
University of California, Berkeley, law professor Jesse Choper said
the appeals court seemed to see standing as a "genuine issue." Legal analysts are uncertain how the court might rule.
Prop 8 supporters say they have the right to appeal since California's leaders will not, and that the institution of marriage will be harmed by allowing same-sex unions.
http://www.reuters.com/article/idUSTRE67G4Y820100817
