A three-judge panel of the 9th U.S. Circuit Court of Appeals that considered the question plans to issue its long-awaited opinion 18 months after a trial judge struck down the ban following the first federal trial to examine if same-sex couples have a constitutional right to get married.
The 9th Circuit does not typically give notice of its forthcoming rulings, and its decision to do so Monday reflects the intense interest in the case.
Even if the panel upholds the lower court ruling, it could be a while before same-sex couples can resume marrying in the state. Proposition 8 backers plan to appeal to a larger 9th Circuit panel and then to the U.S. Supreme Court if they lose in the intermediate court. Marriages would likely stay on hold while that process plays out.
The three-judge panel, consisting of judges appointed by presidents Jimmy Carter, Bill Clinton and George W. Bush, heard arguments on the ban's constitutional implications more than a year ago. But it put off a decision so it could seek guidance from the California Supreme Court on whether Proposition 8 sponsors had legal authority to challenge the trial court ruling after California's attorney general and governor decided not to appeal it.
The California court ruled in November that the state's vigorous citizens' initiative process grants official proponents of ballot measures the right to defend their measures in court if state officials refuse to do so.
Further complicating the case was a move in April by lawyers for the coalition of conservative religious groups that put Proposition 8 on the ballot to have the trial court ruling struck down because the now-retired judge who issued it was in a long-term relationship with another man.
Former Chief U.S. District Judge Vaughn Walker disclosed he was gay and had a partner of 10 years after he retired from the bench last year. Proposition 8 backers have argued that Walker's relationship posed a potential conflict-of-interest and that he should have revealed it before he declared the measure unconstitutional in August 2010.
It was the first instance of an American jurist's sexual orientation being cited as grounds for overturning a court decision. Walker's successor as the chief federal judge in Northern California, James Ware, rejected claims that Walker was unqualified to preside over the 13-day trial. The 9th Circuit held a hearing on that question in December.
Some legal observers believe the written heads-up the court gave Monday indicates it concluded there is no reason Walker should have disclosed his relationship status while he had the case.
California voters passed Proposition 8 with 52 percent of the vote in November 2008, five months after the state Supreme Court legalized same-sex marriage by striking down a pair of laws that had limited marriage to a man and a woman.
The ballot measure inserted the one man-one woman provision into the state Constitution, thereby overruling the court's decision. It was the first such ban to take away marriage rights from same-sex couples after they had already secured them.
The Williams Institute on Sexual Orientation and the Law, a think tank based at the University of California, Los Angeles, has estimated that 18,000 couples tied the knot during the four-month window before Proposition 8 took effect. The California Supreme Court upheld those marriages but ruled that voters had properly enacted the law. "The circumstances in California are unprecedented. The state Supreme Court found marriage equality to be a right of the highest order under the state Constitution, and thousands of couples actually exercised that right before a discriminatory initiative took it away," Wolff said. "The federal courts would do well to focus their attention on those unique circumstances, which would support a ruling that Proposition 8 is unconstitutional while leaving the situation in other states for another day."