Bil Browning

CA Supreme Court Issues Prop 8 Standing Ruling

Filed By Bil Browning | November 17, 2011 1:15 PM | comments

Filed in: Marriage Equality, Politics
Tags: California, California State Supreme Court, gay marriage, marriage equality, Prop 8, Prop. 8, same-sex marriage

The California Supreme Court has issued their ruling on whether or not proponents of ballot initiatives have authority to represent the state of California when the state's public officials decline to do so. The court was asked to decide the I-do-Prop8-marriage.jpgmatter by the 9th Circuit Court of appeals in regard to the Perry v Brown lawsuit over Prop 8. The court has ruled in favor of the proponents.

In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state's interest in the initiative's validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.

This paves the way for the case to proceed back to the 9th Circuit.

Jennifer Pizer, former Senior Counsel to Lambda Legal, explains, "Following today's decision, a three-judge panel on the Ninth Circuit will again take up the Perry case in order to determine the proponents' federal standing. Should both courts decide that the proponents have the respective standing, the appeal of Judge Vaughn Walker's 2010 Perry ruling, which declared Proposition 8 unconstitutional, will resume, potentially leading to an en banc appeal to the full Ninth Circuit, with potential national implications for same-sex marriage."

The Courage Campaign's Jacob Combs succinctly explains the next steps for Perry on Prop8TrialTracker:

There are essentially two bites at the apple to take down Prop 8: constitutionality and standing. Whether the courts find Prop 8 to be constitutional is critically important for obvious reasons. But if the 9th Circuit rules that the proponents of Prop 8 do not have standing and we win on appeal, Prop 8 will end...

As for next steps, many legal observers believe the 9th Circuit is likely to adopt the CA Supreme Court's opinion and say Prop 8's proponents do have standing to appeal. That's not for certain, however, since the proponents could have standing under California law but not in federal court (i.e., a federal appeals court).


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The standing issue is on pretty shaky ground here, even at the federal level.

It's practically impossible for any court to hold that *no one* has standing to uphold the law as they see it, even when a party with a more compelling standing argument has declined to make it for themselves.

I have had to make standing arguments for myself under similar circumstances, and the argument to deny standing is not so appealing when the tables are turned against your own case.

From what I have learned, the proponents of Prop 8 may have standing to argue, but the case they have put on record during trial gives them very little for an appellate court to rule on in their favor. The appellate court must, however, deny the Prop 8 proponents the opportunity to introduce new testimony on appeal that they did not introduce at trial.