In a decision that I frankly see as more politically motivated by justices who are afraid to stand up to Christianist hate merchants, the California Supreme Court has ruled that the proponents of Proposition 8 have standing to bring a post-election appeal as part of the state's initiative process. The ruling allows the backers of discrimination to usurp the power of state elected officials to decide what laws are unconstitutional and should not be supported via litigation. I suspect that over time, many in California will rue the day that this opinion was handed down since it will allow vicious, vitriolic forces to take over defending discriminatory laws that ought to be struck down. In the shorter term, the decision will mean that the Ninth Circuit Court of Appeals will likely consider the merits of the District Court ruling that declared Proposition 8 unconstitutional. Metro Weekly looks at where this is all likely headed. Here are some highlights:
The Ninth Circuit will now take the appeal, Perry v. Brown, back under advisement and decide how it wishes to proceed on the question of whether the proponents have standing under federal law, although the scope of today's opinion makes it almost certain that the federal court will find standing.
The state court was asked by the Ninth Circuit whether the proponents have "particularized interests" in seeing the initiative upheld and whether California law itself allows the proponents to stand in the place of elected officials charged with defending the state constitution when those officials decline to do so.
Attorney Ted Olson, who is representing the plaintiffs who successfully challenged the constitutionality of Proposition 8 at trial, said of today's decision in a conference call this afternoon with reporters, "This frees up the Ninth Circuit to decide the constitutional issues ... on the merits."
The Ninth Circuit could now seek additional briefing and/or arguments or it could rule on both the standing question and the constitutionality of Proposition 8 with no additional steps. Once a ruling is issued from the Ninth Circuit, the losing party is almost certain to ask the U.S. Supreme Court to hear the case. As Olson indicated today, at that point both the standing and merits questions would be before the nation's highest court for final resolution.