Plaintiffs in the Proposition 8 federal lawsuit

The Ninth Circuit Court of Appeals is kicking the Proposition 8 case back to the California Supreme Court.

The federal Appeals Court said today that is asking for guidance from California on the issue of “standing,” which is the right to bring a lawsuit due to a sufficient harm from and connection to the matter being considered. The court said that it could not consider the constitutionality of Proposition 8 until the issue of standing is resolved.

The court wrote that there is no precedent for deciding whether the official proponents of a California initiative — in this case Proposition 8, which bans same-sex marriage — have the right to “defend the constitutionality of that measure…when the state officers charged with the laws’ enforcement, including the Attorney General, refuse to provide such a defense…” Both Arnold Schwarzenegger and Jerry Brown, in their recent incarnations as Governor and Attorney General, declined to defend the proposition. (Continued after audio clip)


Opponents of Proposition 8 turned to the federal courts after enduring a roller-coaster ride in California’s legal system. After the California Supreme Court ruled that same-sex couples have a right to marry under the state constitution, opponents put a constitutional amendment on the ballot to ban such unions. After the initiative passed in 2008, the state Supreme Court ruled that it would not nullify the ban.

The cause for same-sex marriage was then taken up by high-profile lawyers Theodore Olsen and David Boies, erstwhile opponents in the famous Bush v. Gore case. Federal District Judge Vaughn R. Walker ruled in their favor last year, declaring that a ban on same-sex marriage violated the U.S. Constitution. However, he stayed his ruling upon an appeal to the Ninth Circuit Court of Appeals, which heard oral arguments in the case — broadcast publicly — last month.

And in a separate order today, the court ruled that Imperial County, which joined the suit, does not have standing to sue.

Read the analysis of KQED’s Scott Shafer, who has been following the case from the beginning, on our Proposition 8 blog. He points out the following:

Keep in mind, this is not the same State Supreme Court that wrote the decisions first legalizing same sex marriage, then upholding Prop. 8. Chief Justice Ronald George, who wrote both decisions, has retired … and just yesterday Tani Cantil-Sakauye was sworn in as the new Chief.

One thing is certain: California’s ban on same-sex marriage will remain in effect until all the legal issues are resolved, probably by the U.S. Supreme Court, or until voters pass another ballot measure legalizing same sex marriage in California once again.

An extract from today’s order below, full text here.

Filed Order for PUBLICATION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) for certification to California State Supreme Court. Before this panel of the United States Court of Appeals for the Ninth Circuit is an appeal concerning the constitutionality under the United States Constitution of Article I, § 7.5 of the California Constitution (“Proposition 8”). 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.

As we are aware of no controlling state precedent on this precise question, we respectfully ask the Supreme Court of California to exercise its discretion to accept and decide the certified question below.

The Clerk is hereby directed to transmit forthwith to the Court the original and ten copies of this order and accompanying memorandum, as well as a certificate of service on the parties. Cal. R. Ct. 8.548(d). The clerk shall also transmit the following along with this request: ten copies of the district court Findings of Fact / Conclusions of Law / Order (704 F. Supp. 2d. 921 (N.D. Cal. 2010)); ten copies of the Permanent Injunction issued by the district court (docket entry 728 in No. C 09-2292-VRW (N.D. Cal. Aug. 12, 2010)); a copy of the video recording of the oral argument heard in these appeals on December 6, 2010; the briefs of the parties and intervenors in this appeal; and the briefs amicus curiae filed by (1) the Center for Constitutional Jurisprudence and (2) Equality California in No. 10-16696. The Clerk shall provide additional record materials if so requested by the Supreme Court of California. Cal. R. Ct. 8.548(c). The case is withdrawn from submission, and further proceedings in this court are stayed pending final action by the Supreme Court of California. The parties shall notify the Clerk of this Court within three days after the Court accepts or rejects certification, and again within three days if the Court renders an opinion. The panel retains jurisdiction over further proceedings. IT IS SO ORDERED. [7598921] (RP)

Federal Appeals Court Sends Prop 8 Case to Calif. Supreme Court for Guidance on “Standing” 12 March,2013Jon Brooks

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