[JURIST] Officials for Imperial County [official website], California, announced Tuesday that the county has submitted its opening brief [text, PDF] in an appeal against last month’s federal court decision [JURIST report] striking down California’s ban on same-sex marriage [JURIST news archive]. District Judge Vaughn Walker denied Imperial’s request to intervene in the original suit in August, stating that the request was not timely. Walker went on to rule that Proposition 8 [text, JURIST news archive] was unconstitutional under both the Due Process Clause and the Equal Protection Clause [Cornell LII backgrounders] of the Fourteenth Amendment. Imperial appealed to the US Court of Appeals for the Ninth Circuit [official website], defending its right to intervene and the validity of the Proposition 8 legislation. Imperial claims that same-sex marriage is not a fundamental right under the Due Process Clause and that Proposition 8 satisfied rational basis review under the Equal Protection Clause. Criticizing Walker’s legal analysis, Imperial stated in its brief:

The people of California have now acted twice in exercising their initiative power to define marriage as being between one man and one woman. The people’s vote has twice been challenged in the California Supreme Court and is now being challenged in the federal courts. It is a long held principle in California that is “the duty of the courts to jealously guard the right of the people” to exercise their initiative power, which is described as “one of the most precious rights of our democratic process.” The district court in this case failed to recognize his role as a judge as opposed to a policy maker. Before this Court is an opportunity to restore the vote of over 7 million Californians by applying rational basis review, while exercising appropriate judicial restraint.

Walker has cast doubt on the ability of defendant-intervenors in the suit to appeal the district court decision because they are not original parties to the suit and therefore lack the necessary standing. If the Ninth Circuit allows Imperial to intervene in the suit, the court will then determine whether the county has standing to appeal Walker’s ruling. The state of California, the original defendant to the suit, has decided not to pursue an appeal of Walker’s ruling.

Earlier this month, a judge for California’s 3rd District Court of Appeal [official website] ruled [JURIST report] that neither Governor Arnold Schwarzenegger nor Attorney General Jerry Brown is required to appeal Walker’s decision. Last month, a three-judge panel for the Ninth Circuit issued a stay [JURIST report] of Walker’s decision, pending appeal. Schwarzenegger, Brown and others filed motions [JURIST report] opposing the stay request. Schwarzenegger and Brown were originally defendants in the lawsuit, and their refusal to oppose the stay request left defendant-intervenors Protect Marriage [advocacy website] and other groups to defend the law. The remaining defendant-intervenors have indicated they will, if necessary, appeal the case to the US Supreme Court.