Moments ago, the Ninth Circuit Court of Appeals punted the appeal of Judge Vaughn Walker’s historic ruling against Proposition 8 — a ballot proposition in California that prohibited same-sex couples from marrying in the state — to the California Supreme Court, noting that it could not rule on the constitutionality of the measure until the higher court confirmed the standing of the plaintiffs:

Because we cannot consider this important constitutional question unless the appellants before us have standing to raise it, and in light of Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (“Arizonans”), it is critical that we be advised of the rights under California law of the official proponents of an initiative measure to defend the constitutionality of that measure upon its adoption by the People when the state officers charged with the laws’ enforcement, including the Attorney General, refuse to provide such a defense or appeal a judgment declaring the measure unconstitutional.

Former California governor Arnold Schwarzenegger and newly inaugurated Governor Jerry Brown both declined to defend Proposition 8, leaving that job to the measure’s supporters and Imperial County. In a separate document, the court ruled that Imperial County — one of the counties that voted for Proposition 8 and claimed “direct financial interest in assuring that the vote of its residents is defended and ultimately upheld” — lacked standing to appeal the decision. That appeal was brought by the Deputy County Clerk, the County of Imperial and the Board of Supervisors. The court waived the County’s argument, noting that “the County made no mention of any such interest in the case, and certainly of no financial interest” in the district court.

In August, Walker ruled that Proposition 8 undermined both the Due Process and Equal Protection Clauses, arguing that “[e]ach challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.” “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license,” he said, “Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite- sex couples are superior to same-sex couples.”

This morning, Virginia Delegate Bob Marshall (R) — who has responded to the Congressional repeal of Don’t Ask, Don’t Tell by introducing legislation to prevent gay people from serving in Virginia National Guard — appeared on Fox and Friends to press his case for preserving the ban against “active homosexuals” serving the state:

MARSHALL: Well, active homosexuals, not people with a sexual persuasion that way…This is has been the policy of the United States for 232 years and the moral assumption for the last 6,000 years, so when Congress decided to change this on the weekend when they’re in lame duck session, when they’ve been repudiated by the voters and on a bill that dealt with the Small Business Administration and allowed no amendments except this, that’s a problem. [...]

I checked with the Virginia National Guard recruiters and Army recruiters we clearly have different admission standards right now…We can have different policies. This is a separate unit. When you join the U.S. Army in Virginia, you don’t join the Virginia National Guard.”

Watch it:

Marshall’s proposal stands little chance of being enacted and has been condemned by Virginia’s conservative governor Bob McDonnell. “The governor is a retired United States Army officer, and he knows it is critically important that there be one set of rules for all our men and women in the military, since uniformity of major policy across all branches is essential to effective operations,” McDonnell spokesman Tucker Martin told the Washington Post. “We are not aware of a single instance in recent history where the Virginia National Guard has not complied with the policies and procedures of the Department of Defense. Furthermore, approximately 90 percent of the Virginia Guard’s funding is federal, and any departure from federal policies may put this funding at risk.”

Delegate Joseph Morrissey (D) has also proposed a counter bill that would “codify in state law that the Virginia National Guard is subject to the same eligibility requirements as the U.S. military.”