Moments ago, the Ninth Circuit Court of Appeals punted the appeal of Judge Vaughn Walker’s historic ruling against Proposition 8 — a ballot proposition in California that prohibited same-sex couples from marrying in the state — to the California Supreme Court, noting that it could not rule on the constitutionality of the measure until the higher court confirmed the standing of the plaintiffs:
Because we cannot consider this important constitutional question unless the appellants before us have standing to raise it, and in light of Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (“Arizonans”), it is critical that we be advised of the rights under California law of the official proponents of an initiative measure to defend the constitutionality of that measure upon its adoption by the People when the state officers charged with the laws’ enforcement, including the Attorney General, refuse to provide such a defense or appeal a judgment declaring the measure unconstitutional.
Former California governor Arnold Schwarzenegger and newly inaugurated Governor Jerry Brown both declined to defend Proposition 8, leaving that job to the measure’s supporters and Imperial County. In a separate document, the court ruled that Imperial County — one of the counties that voted for Proposition 8 and claimed “direct financial interest in assuring that the vote of its residents is defended and ultimately upheld” — lacked standing to appeal the decision. That appeal was brought by the Deputy County Clerk, the County of Imperial and the Board of Supervisors. The court waived the County’s argument, noting that “the County made no mention of any such interest in the case, and certainly of no financial interest” in the district court.
In August, Walker ruled that Proposition 8 undermined both the Due Process and Equal Protection Clauses, arguing that “[e]ach challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.” “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license,” he said, “Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite- sex couples are superior to same-sex couples.”
Update
Robert Cruickshank of Calitics adds some more context:
The CA Supremes could say “yes, the proponents do have standing” or “no, they proponents do not have standing,” or they could simply not respond at all. The first and third options are more likely, and based on the CA Supremes’ longstanding (and I believe flawed) unwillingness to interfere with ballot initiatives, the CA Supremes will probably conclude that the Prop 8 proponents do indeed have standing to appeal.
In which case, the 9th Circuit would then rule on the issue of Prop 8′s constitutionality. I am guessing that their ruling will be to uphold Judge Walker, otherwise they would just say Prop 8 is constitutional and moot the question of standing. [...]
The CA Supremes can take as long as they want in answering the 9th Circuit. It could be days, weeks, or months. Whatever the outcome, it shows again the need to reform our initiative process. One reason our state government fails is that we’ve essentially set up a fourth branch of government – the people – that can negate anything done by the other three branches, but without any real checks or balances on the powers of that fourth branch.
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