Jan 05, 2011

Ninth Circuit Asks California Supreme Court to Weigh in on Prop 8 Standing Question

At oral argument in January, the three-judge Ninth Circuit panel hearing arguments on the constitutionality of California's Proposition 8 (banning same-sex marriage) considered the question whether the proponents of Prop 8 even have the right to appeal. The proponents were appealing a Northern District of California ruling that held Prop 8 unconstitutional, but they were alone in doing so--both the then-Governor and the then-Attorney General of California declined to join in the appeal.

The question of standing has to be answered before the court addresses the constitutional issues, because if the proponents don't have standing, there's nothing to consider--the most likely outcome is that the case is over and Judge Walker's ruling stands. However, the Ninth Circuit judges decided that the issue of standing is one of California law that the California Supreme Court should answer, and they "certified the question" to the California Supremes--that's lawyer talk for asking another court to rule on something. 

The California Supreme Court must now decide whether it will accept the Ninth Circuit's request--most likely, it will do so. Both sides will submit more briefs, and there might be another round of oral argument. There's no required time frame for the Supreme Court to issue a decision, so this case will be significantly delayed compared to how long it would have taken if the Ninth Circuit had simply ruled on the issue. We can hope, however, that the Supreme Court will move quickly to help resolve an important issue in a case that involves the legal rights of thousands of LGBT citizens.