SAN FRANCISCO (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.
NEVER ABANDON WINNING ARGUMENT
Same sex marriage advocates, who entered the case saying they wanted to take the issue to the Supreme Court to set national policy, now appear ready to limit the immediate fight to California.
They want to set a national precedent, but "we would never cast aside a winning argument," said Ted Boutrous Jr, one of the chief lawyers taking on the California ban. If his team won the appeal by virtue of the court deciding that gay marriage opponents do not have standing, "gay men and lesbians would be able to exercise their right to marry in California."
The pro-gay-marriage opinion by District Court Chief Judge Vaughn Walker would influence other courts, he said.
"It would be a powerful weapon in the battle for marriage equality across this country," he said.
That message is good news for gay rights advocates who long avoided a federal court battle for fear the Supreme Court would rule against them. Some fearing social backlash also want to avoid changing too fast.
Kate Kendell, executive director of the National Center for Lesbian Rights, said a permanent lifting of California's matrimony ban would have a "catalytic effect" on the national debate on gay marriage.
Kendell favors pursuing a ruling limited to California, to enjoy 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 standing issue, which ultimately is in the courts' hands.
"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)
