9th Circuit Directs Question to California Supreme Court in Prop 8 Case

As many LGBT blogs and news outlets are reporting, the Ninth Circuit Court of Appeals has deferred to the California Supreme Court on a question of standing in the appeal from Judge Vaughan's ruling in Perry v. Schwarzenegger. The issue is whether the proponents of Proposition 8 have standing to bring the appeal where the State of California - acting through the office of Governor and Attorney General - has refused to do so. In its partial decision, the 9th Circuit did rule that Imperial County lacks any standing to bring the appeal. As noted in prior posts, federal court rulings suggest that the Proposition 8 supporters likely do not have the standing to litigate the appeal. However, since Prop 8 is a California provision, the 9th Circuit referred the issue to the California Supreme Court. As some analysis has suggested, this move may be wise since if the California Supreme finds that the Prop 8 proponents lack standing, a potential issue for appeal should Judge Vaughan's ruling is upheld will have been taken away from the anti-gay marriage crowd. Candidly, a finding that the Prop 8 supporters have standing would open the door to all kinds of crackpots and crazies bring appeals. Thus, I hope the answer of the California Supreme Court is a resounding "No!" Here are some highlights from the San Francisco Chronicle:
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California's highest court, which has issued three rulings on same-sex marriage in less than seven years, was handed another crucial question Tuesday - whether sponsors of a voter-approved measure banning gay and lesbian weddings have the right to defend it in court.
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Then-Gov. Arnold Schwarzenegger and ex-Attorney General Jerry Brown refused to appeal a federal judge's ruling in August that the measure unconstitutionally discriminated based on sexual orientation and gender. So the future of the case depends on whether Prop. 8's sponsor, a conservative religious coalition called Protect Marriage, has legal standing - the right to represent the interests of the state and its voters.
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If not, the federal appeals court could uphold Chief U.S. District Judge Vaughn Walker's ruling and restore same-sex marriage in California - legalized briefly by a 2008 state Supreme Court ruling - without deciding whether Prop. 8 is constitutional.
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The California court has allowed initiative supporters to argue in favor of a measure's validity but has never said whether they could do so if the state did not join in. The U.S. Supreme Court, in a 1997 Arizona case, said it had "grave doubts" that a ballot measure's sponsors could stand in for state officials.
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In a separate order Tuesday, the federal court denied standing to Imperial County, which had sought to enter the Prop. 8 case and defend the ballot measure that 70 percent of its voters supported. The court said the county had no independent authority over marriage, apart from carrying out state law, and noted that the elected county clerk - whose duties might be affected by the case - had not joined the appeal.