California Supreme Court to consider whether Prop 8 proponents have standing to appeal decision striking it down

by on September 6, 2011  •  In Uncategorized

This morning at 10 a.m. (PDT), the California Supreme Court will hear oral arguments on the highly technical but extremely important question of whether the proponents of Prop 8 (the group that secured its placement on the 2008 ballot) can appeal the 2010 decision in the Perry case declaring Prop 8 to be unconstitutional.  Normally, either the Governor or the Attorney General of a state will defend the constitutionality of a state law. In this instance, however, neither office – both before and since the election of new officeholders that year – has been willing to defend it.

Although Perry is being litigated in federal court and is before the Ninth Circuit Court of Appeals, that court has asked the state's supreme court to render an opinion about whether the proponents would have standing under state law. Under its rules, the California Supreme Court must issue a decision within 90 days after argument.

If the state court finds a lack of standing, it is likely that the Ninth Circuit will find that federal law does not supply the basis for standing. Logically such a ruling would lead to a dismissal of the appeal and a reinstatement of Judge Walker's order, meaning that Prop 8 would be invalidated. And eventually it might. But first this case will go through another round or two of appeals, possibly to the Ninth Circuit sitting en banc, and almost certainly at least a petition for review by the Supreme Court.

If the California Supreme Court finds that the proponents do have state law standing, the Ninth Circuit would still have to determine standing under federal law; it is possible that they will rule that the same group lacks standing in federal court even if it would have standing in state court. (The details are just too complex to get into.) If it concludes that state law standing is sufficient or determinative or just plain persuasive, the Ninth Circuit would then reach the merits of the case and issue a ruling either upholding or reversing the District Court decision that Prop 8 is unconstitutional.

And then, of course, the next round of appeals will begin on the merits.

One footnote to this morning's argument is that a brand new state Supreme Court Justice, Goodwin Liu, will be on the bench. Liu, formerly a professor at Berkeley Law, was unable to secure Senate confirmation after the President nominated him to sit on the Ninth Circuit. Of course, the federal courts should be so lucky as to have judges of Goodwin's caliber. Standard operating procedure in Congress.


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