It was an issue brought up during last month's Prop 8 hearings before the 9th U.S. Circuit Court of Appeals. Now the judges are asking the California Supreme Court for guidance on whether the ballot measure's supporters have the legal standing to argue the case at all.
"If the 9th Circuit, based on the advise it receives from the California Supreme Court, decides the proponents do not have standing to appeal, that means that the district's court's decision that holds Proposition 8 unconstitutional...is the law of the land," Ted Olson, one of the attorneys representing the two couples challenging Prop 8, said.
"This is a huge deal because this could effectively derail this entire appeal," ABC7 legal analyst Dean Johnson said. "If the California Supreme Court decides no standing then the federal court loses jurisdiction."
If the California Supreme Court decides the group ProtectMarriage.com does have legal standing to defend Prop 8, then the case goes back to the federal appellate court for a ruling on its merits. That is, whether Prop 8's ban on same-sex marriage is constitutional.
"We're pleased to see that the 9th Circuit has asked the California Supreme Court to clearly reaffirm the right of proponents to defense voter-passed measures that they successfully sponsored," ProtectMarriage.com spokesperson Andy Pugno said.
While the courts consider the issues, same-sex couples wanting to marry could be in for a long wait.
"That part is hard; this will actually lead to some delay in the ultimate resolution of the case," National Center for Lesbian Rights spokesperson Shannon Minter said.
The California Supreme Court is under no legal obligation to act on the 9th Circuit's request for guidance.