The California Supreme Court agreed Wednesday to decide whether the official sponsors of Proposition 8 have the right to defend the same-sex marriage ban before a federal appeals court.
The state high court's action means there will be a legal detour of at least seven months before the federal appeals court could review Walker's decision.
The court, in an order issued at its San Francisco headquarters, said it will give the case "expedited consideration" and could hear arguments as early as September. Its decision will be due within 90 days of that hearing.
The court unanimously accepted a request made by the 9th U.S. Circuit Court of Appeals last month for an opinion on whether state law allows sponsors of an initiative to defend it in court.
The question of the sponsors' standing, or authority, to appeal is a key issue in their bid to challenge a decision in which U.S. District Judge Vaughn Walker last year struck down the 2008 voter initiative banning same-sex marriage in California.
The California officials who were named as defendants, including former Gov. Arnold Schwarzenegger and former Attorney General and now Gov. Jerry Brown, declined to appeal, and the Proposition 8 sponsors and their committee want to step in to pursue an appeal.
But the federal appeals court said in last month's request that U.S. law doesn't appear to allow initiative proponents to appeal rulings when state officials refuse to do so. The question of whether state, as opposed to federal, law allows such appeals is therefore critical to whether the 9th Circuit can consider the constitutionality of Proposition 8, the court said.
"We cannot consider this important constitutional question unless the appellants before us have standing to raise it," said a three-judge appeal panel.
The case is a civil rights lawsuit filed in 2009 by two couples who want to marry: Kris Perry and Sandra Stier of Berkeley and Jeff Zarillo and Paul Katami of Burbank. Walker ruled in August that Proposition 8 violates the U.S. Constitution's guarantees of equal treatment and due process.