Proposition 8 Standing Question Sent to State Court

In a procedural move that was hinted at during the recent oral arguments at the 9th Circuit Court of Appeals on the Proposition 8 appeal, the “standing” question has been referred to the California Supreme Court. The federal Judges have acknowledged that because the state officials have declined to appeal Judge Walker’s ruling tossing out Proposition 8, the appeal can’t go forward unless the proponents of Prop 8 are allowed to pursue their own appeal. Interestingly, things would gone been very differently had the Republicans won the governor’s or attorney general’s race, as their candidates had said they would pursue the appeal. Instead, with the Democratic victory for both positions, the question of standing remains a threshold question for the Court of Appeals. Until they decide that the proponents have standing, they can’t rule one way or the other on the validity of Proposition 8 – and if they can’t issue a ruling then Judge Walker’s wonderful decision would be the final one.

The federal court could have answered the standing question on its own, even though it’s a question of state law, but instead, they have asked the California Supreme Court to tell them whether they think the proponents have the right to pursue an appeal of Judge Walker’s decision. The California justices have the option of declining the request or answering the question — and if they agree to answer it then they will ask for more briefs from the lawyers and probably have oral arguments on the issue. Chances are they will take up the question, and this will delay the case for as long as a year. Then, if they rule that the proponents have standing the case will go back to the federal court for a ruling on the substantive aspects of the appeal. If they refuse to take up the question it will be up to the federal judges to make the ruling.

There are two political angles to this recent turn of events that warrant particular attention. First, most progressive groups want to see an expanded approach to standing, so that political groups can pursue appeals regarding their initiatives. Thus, the effort to prevent the proponents of Prop 8 from pursuing an appeal runs counter to this broader political approach. Second, this procedural delay all but guarantees that the case will not be decided by November 2012, when there will probably be a new ballot initiative to repeal Proposition 8. If that repeal is successful the legal case will become moot, and so we will never know how the United Supreme Court would rule on these issues – which is fine by me!