Decision on standing in Perry case to be announced tomorrow

by on November 16, 2011  •  In Marriage

At 10 a.m. PST tomorrow, the California Supreme Court will rule on whether the Prop 8 proponents have standing to appeal the District Court decision in the Perry case that Prop 8 violates the federal Constitution.

The Ninth Circuit, where the issue is on appeal, unanimously asked the state supreme court to weigh in, based on the importance of whether the proponents would have standing under state law to the federal law analysis. The California Supreme Court then heard argument on that question on September 6.

What happens next? The Perry litigation saga will return to the Ninth Circuit and the federal court system. The Ninth Circuit will have to issue its own ruling on whether the Prop 8 proponents have standing. If the California court declares that there would be no standing in its system, I think the federal courts are unlikely to grant standing.

At oral argument before the California Supreme Court, however, the tone of the questions suggested the opposite result. If those signals prove correct – and often signals during oral argument are misleading – then the Ninth Circuit will consider the federal standing question in light of the fact that the proponents would be allowed to defend the law if the matter were in state court. A Ninth Circuit ruling in favor of the Prop 8 proponents becomes more likely in that event, although by no means certain.

After the California Supreme Court ruling, the Ninth Circuit panel of judges who heard argument may proceed pretty quickly to issuing a decision. Or they may ask the parties for additional briefing and argument in light of whatever the state court says. (There are no deadlines in the federal court system for when decisions must be issued.)

And when the Ninth Circuit decision comes down, if it finds that the Proponents do have standing, will it also address the constitutionality of Prop 8 at the same time, or will this next decision relate only to standing? When Perry was first argued before the Ninth Circuit, almost a year ago (December 2010), the scope of the argument included both standing and the merits.

The federal appellate court was pretty unhappy with both sides when it heard the first round of argument last winter, referring to "the inexplicable manner in which the parties have conducted this litigation." Eventually (there could be an en banc round as well) we will find out how that court will come down on this technical but far-reaching question.

Stay tuned.


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