California Supreme Court to Rule on Prop 8 Question

Not surprisingly, the California Supreme Court has agreed to answer the question posed by the Ninth Circuit Court of Appeals judges on the Proposition 8 standing issue. The question revolves around the arcane doctrine of standing, which determines who has the right to challenge a proposition on appeal. The trial court allowed the proponents of Proposition 8 to defend its validity at trial, because the Governor of California elected not to defend it. However, the rules for an appeal are slightly different, and once the proponents lost at trial and the State of California elected not to appeal that decision, it was not clear if the proponents could appeal that loss.

Because this is primarily a question of state law, the federal appeals court had two options. They could have tried to answer the question on their own, or they could refer it to the State Supreme Court for an answer, which is what they did. Interestingly, the State court could have refused to answer, punting the question back to the federal court. But as expected, the State court agreed to answer the standing question.

The court has asked the parties to submit supplemental briefs on the issue by May, and they will hold oral argument in September. That means they will likely issue a decision some time late in the year, probably in December.

If the State court rules that the proponents do not have standing, the federal appeal will be dismissed and the trial court decision will stand. This probably means that the ban on same-sex marriage will be lifted – though there is some uncertainty as to the procedures in this sort of situation. On the other hand, if the State court rules that the proponents do have standing to file an appeal, then the federal appeals court will have to rule on the substance of the appeal, i.e. whether Proposition 8 is constitutionally valid. This could take as long as another year, especially because the three-judge panel’s decision could be reviewed by a larger number of appellate judges.

Many folks have wondered what would happen if this case ever got to the United States Supreme Court. Given how long this process is taking and how many more steps there are in this process, chances are Proposition 8 will be back on the ballot in November 2012, before any final decision is reached. If the proposition is reversed by the voters in 2012 then we will never have to worry about how the Supreme Court would decide.