By Dan Levine
SAN FRANCISCO (Reuters) - A U.S. appeals court mulling California's controversial gay marriage ban said on Tuesday it needs more legal guidance before it can decide the constitutional issues at stake, a move which will likely delay a final ruling in the case.
California voters banned same sex weddings in 2008 by approving so-called Proposition 8. But last year a federal district court ruled the measure unconstitutional.
That ruling is on hold as supporters of the gay marriage ban appealed. But then-Attorney General and now Governor Jerry Brown refused to sign on to the appeal. Then-Governor Arnold Schwarzenegger also took the same stance.
In an order released on Tuesday, the 9th U.S. Circuit Court of Appeals asked the Supreme Court of California whether initiative supporters have the authority to defend a ballot measure when public officials refuse to do so.
The 9th Circuit said it was not clear whether the governor may "effectively veto" Prop 8 by refusing to defend it, since he does not have the power to strike down Prop 8 directly.
Andrew Pugno, general counsel for the pro-Prop 8 group ProtectMarriage.com, said the organization was "gratified" by the 9th Circuit's move, "particularly when public officials abdicate their constitutional duties by refusing to enforce and defend the law."
Ted Olson, an attorney for two couples challenging Prop 8, said they would renew their arguments that ProtectMarriage.com does not have the legal right to pursue an appeal.
"We see no good side whatsoever for requiring citizens in California essentially to drink out of different drinking fountains," Olson said.
The state Supreme Court could answer in "a matter of months," said San Francisco Chief Deputy City Attorney Therese Stewart, who helped litigate against the gay marriage ban.
The state Supreme Court could decide to hold its own hearing on the matter, said Hastings College of the Law Professor Rory Little. Whatever the state court rules, the case will then return to the 9th Circuit for a final opinion, Little said.
"I feel like it's a bit of a stall," Little said.
Once the 9th Circuit rules, the case could be appealed to the U.S. Supreme Court.
More than 40 U.S. states have outlawed same sex marriage, but the California challenge could have a national impact if the U.S. Supreme Court decides to review the 9th Circuit decision.
(Reporting by Dan Levine, Editing by Sandra Maler and Cynthia Osterman)