* California state officials won't defend Prop 8 ban
* Could mark strategy change for pro gay marriage team
(Adds quotes from lawyers)
By Peter Henderson and Dan Levine
SAN FRANCISCO, Aug 17 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 U.S. Supreme Court ruling to guide the
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
team supporting the same-sex marriage ban to say why the case
should not be dismissed due to lack of standing -- a term for
the right to appeal.
California's state government would be the proper body to
represent the case for upholding Prop 8, but neither the
governor nor the attorney general is willing to pursue it. The
defense of the ban has so far been mounted 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 proponents of the ban do not have
standing, the judges will not even look at the main argument.
That would be in line with standard judicial policy of making
rulings as narrow as possible.
Prop 8 passed in November 2008, angering liberals who
wondered how trend-setting California could fall in line with
roughly 40 other states that ban same-sex marriage. On the
other side, social conservatives were encouraged and boasted
that their cause had national support.
That led to the federal court case, with an unusual twist:
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 that 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.
Jesse Choper, a law professor at the University of
California, Berkeley, 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.
NEVER ABANDON WINNING ARGUMENT
Same sex marriage advocates, who entered the case saying
they wanted to take the issue to the U.S. Supreme Court to set
national policy, now appear ready to limit the immediate fight
"Our strong preference is to litigate this on the merits
all the way through (to the Supreme Court) and prevail, but we
would never cast aside a winning argument," said Ted Boutrous,
one of the lawyers taking on the California ban.
If California courts reach a decision in favor of gay
marriage, "It would be a powerful weapon in the battle for
marriage equality across this country," said Boutrous.
It would also encourage gay rights advocates who had long
avoided a federal court battle for fear that the Supreme Court
would rule against them.
Kate Kendell, executive director of the National Center for
Lesbian Rights, said if California's ban on same-sex matrimony
if lifted permanently, it would have a "catalytic effect" on
the gay marriage debate across the United States.
Kendell favors pursuing a ruling limited to California, in
the hope of securing a victory, rather than risk taking the
fight to the Supreme Court.
Therese Stewart, the San Francisco deputy city attorney who
helped fight the federal court case on behalf of gay couples
said her team is "certainly discussing" whether to emphasize
the issue of standing, which ultimately is in the courts'
"I think the pro of having it stop here is that you've got
a ruling that allows marriage now in California, and sort of
ends the battle in California," Stewart said.
"And there's less risk in the Supreme Court. The pro of
going all the way is a ruling that could be positive
nationwide. Different people have different views," she said.
(Editing by Cynthia Osterman and Chris Wilson)