Ninth Circuit Decides Proposition 8 Case. Sorta.

By Michael Stephan

Perry v. Schwarzenegger, the weighty gay marriage case involving California’s Proposition 8, took a step toward completion last week when the Ninth Circuit ordered certification of a question about standing to the California Supreme Court.  Proposition 8, which was deemed unconstitutional by a federal district court last August, provides that “[o]nly marriage between a man and a woman is valid or recognized in California.”

The issue of standing pertains to whether the appellants have a sufficient interest or authority with which to defend the constitutionality of Proposition 8.  The appellants are the official “proponents” of Proposition 8—i.e., the five Californians who originally placed the initiative on the statewide ballot in 2008.  These proponents were not named defendants in the district court case, but they were nevertheless permitted to defend Proposition 8 as intervenors.  Because the named defendants—all of whom were state officers—declined to appeal the district court decision, the question remains as to whether the defendants-intervenors-appellants have standing to appeal.

The Ninth Circuit’s order asks the California Supreme Court whether, under California law, the proponents of an initiative have “either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative . . . when the public officials charged with that duty refuse to do so.”

If the California Supreme Court holds that initiative proponents do, in fact, possess a sufficient interest or authority to defend their initiative’s constitutionality, then the Perry appellants will have standing and the Ninth Circuit will reach the case’s merits.  If not, then the Ninth Circuit will lack the power to consider the merits and the appeal will be dismissed.  As the Ninth Circuit’s order notes, it is unclear what dismissal of the appeal will mean for the fate of Proposition 8.

Along with its order, the Ninth Circuit panel also issued a separate, per curiam opinion dismissing for lack of standing an appeal in a companion case.  Judge Reinhardt filed a concurrence to the order and the opinion, as well as a memo explaining his decision not to recuse himself from the appeals.


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