In yet another segment of what feels like the never-ending California same-sex marriage struggle, the 9th Circuit Court declined to answer the question as to whether or not Prop 8 was unconstitutional. Instead they submitted a question to the California Supreme Court seeking clarity as to whether proponents of ballot initiatives have legal standing to defend ballot initiatives if the state refuses to defend those initiatives. In this case, "Protect Marriage" is "defending Prop 8" because former Governor Schwarzenegger and former Attorney General Jerry Brown, now California Governor and presiding Attorney General Kamala Harris are not defending Prop 8 on behalf of the state because they believe it's unconstitutional.
The California Supremes have no deadline on when they need to rule on this case. Bottom-line: Justice is being delayed.
What could happen next? We wait for several more months for the standing issue to be decided by the California Supremes, something that we thought the 9th Circuit would do. Then, whether or not Prop 8 proponents have legal standing, the case will go back to the 9th Circuit to decide if Prop 8 is unconstitutional.
Either way this is going to take months and then there is still the possibility that even if the 9th Circuit rules that Prop 8 is unconstitutional the case could continue to be appealed all the way up to the U.S. Supreme Court. It all feels like a horrible game of "keep away."
"Let's keep marriage rights away from the gays."
California State Supreme Court 2008: "You want this? You want your rights? Come on. Here you go, just kidding!"
Prop 8 passes.
California State Supreme Court 2009: "Sorry, vote of the people stands 2009."
Rights passed to Judge Walker. "You want this? You want your rights? Here, you can have them."
Stay put in place, rights passed on to 9th Circuit. "Hmm, you want your rights? Here you...psych!" Rights passed back to California State Supreme Court.
This is why I continue to love Gavin Newsom. On Feb 12, 2004, he said, "What do we need to do to let same-sex couples have their marriage rights. Change this form to applicant one and applicant two? Cool. Let's do it."