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Federal appeals court judges hearing arguments on California’s Proposition 8 in San Francisco today suggested they are considering sending the contentious case on a detour to the California Supreme Court.

The suggestion came from Judge Stephen Reinhardt during the first half of a two-hour hearing before a three-judge panel of the 9th U.S. Circuit Court of Appeals on the state’s voter-approved ban on same sex-marriage.

That portion of the hearing concerned whether the sponsors of Proposition 8 even have standing, or the legal right, to appeal a ruling by U.S. District Judge Vaughn Walker that found the measure unconstitutional.

The appeals panel had called for arguments as to whether the measure’s sponsors could appeal since the official defendants in the case–including Gov. Arnold Schwarzenegger and Attorney General Jerry Brown–had declined to appeal Walker’s ruling.

David Boies, a lawyer for two same-sex couples, told the court he believes it’s “crystal clear” the sponsors had no right to appeal because they were not personally hurt by the lower court ruling.

Reinhardt then asked, “Why shouldn’t we ask the California Supreme Court what the law is in California?

“I don’t see what we would have to lose by asking California to certify the question and they would tell us,” Reinhardt said.

Under an agreement between the federal appeals court and the state high court, the federal court can delay ruling on a case while it asks the California court to decide an issue of state law.

After the state court decides the issue–which in this case would be whether Proposition 8 sponsors have the right to appeal–the case would go back to the 9th Circuit for a further ruling.

Charles Cooper, a lawyer for the measure’s sponsors, said he doesn’t object to the court sending the standing question to the state Supreme Court.

“If you don’t agree with me that we have standing, then I do urge you do ask the California Supreme Court to decide this issue before you dismiss this case and allow a single district court decision to nullify the will of over 7 million Californians,” Cooper told the judges.

The court will issue a written decision at a later date.

Julia Cheever, Bay City News

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