1. spiderseye says

    Aren’t they asking the CA Supreme Court to weigh in on constitutionality of the proponents standing? It looked like the may have denied standing for Imperial County. They upheld a lower courts denial of standing for someone.

  2. Glenn says

    On the Imperial deputy clerk, they say that the County Clerk might have had standing, but the deputy doesn’t since she just does what the County Clerk tells her to. Why the County Clerk didn’t seek intervention is the question Reinhardt wants to know in his concurrence.

  3. Bob Conti says

    Here’s the analysis in a nutshell. The Ninth Circuit decided to, as JMG put it, punt to the CASC the question of standing under California, rather than federal, law which are not the same. I think we’re screwed on the standing question now, because it think the CASC will find that the proponants would have standing under California law to file the appeal. Of course, this is just the threshold issue, and doesn’t affect the substantive merits of the case.

  4. Darren says

    Yup. I think the standing issue will be a “yes” from CASC given the brief, the fed court just wants the CASC to put it in writing. And its a delay, yes, but better to delay and answer the standing issue now than go all the way the SCOTUS and be turned away for a standing issue to decide the real nuts n bolts question here.

  5. spiderseye says

    But as Boies and Olsen argued, whether or not the CA court says the proponents have standing ultimately doesn’t decide the matter under federal law. It might cover the District Court to have asked, but the Supreme Court will ultimately need to decide if the proponents suffer any direct harm, in order to have standing to file a case in federal court. Federal cases have to have a concrete conflict or dispute, not just be intellectual matters of law or rights.

  6. Sam says

    I am confused why the 9th Cir., using CA law, cannot determine standing without the punt back to the CA SC? Ultimately the Supreme Court will probably very likely review any decision the the CASC gives.

  7. Zlick says

    Section III B of the Order Certifying a Question practically dares the California Supremes not to grant a state-created particularized interest to the Proponents or authorize them to act in the absence of state officials. The Ninth Circuit is not very subtle about which way they want the Cali Supremes to come down on these questions. Read the Order. Section III B. Sheesh.

    But as David Bois pointed out at the hearing, standing conferred by California law is required – but is not of itself sufficient. This is a punt, and the Ninth Circuit is pretty baldy trying to find a way to grant standing so they can sink their judicial teeth into the Constitutional question.

  8. Skeptical Cicada says

    This is not a positive development. If you read the memorandum above, the 9th Circuit panel is clearly pressuring the California Supreme Court hard to hold that Prop. 8 proponents have a right to defend Prop. 8 when the state refuses to do so. If the California Supreme Court agrees, that is a terrible development.

    Why? If the Prop. 8 proponents lack standing, the challenge is over and same-sex marriage comes to California, unless the U.S. Supreme Court disagrees on standing.

    If the Prop. 8 proponents have standing, however, Judge Walker’s decision on the merits will have to be reviewed at the 9th Circuit and then quite possibly at the U.S. Supreme Court. That is a far, far, far riskier path for this challenge to take.

    I know some folks are panting to get the whole marriage equality question to the U.S. Supreme Court. But prevailing in the 9th Circuit on standing is the much safer option. Folks who believe a majority of the U.S. Supreme Court will just rubber stamp and affirm Judge Walker’s decision and order all 50 states to offer same-sex marriage are, in my view, unrealistic and reckless.

  9. justiceontherocks says

    No explanation of why many “legal scholars” think this is an “unnecessary” step. If the standing question isn’t settled under CA law, it seems like the prudent thing to do.

    It would be a shame if the standing question bounced around so long we are delayed in getting to a ruling on the merits.

  10. John says


    The Ninth Circuit is in a bit of a bind. Because there is really nothing in California statutory law that states what rights proponents for a ballot initiative have, if any, to defend “their” law if all the major players in state government declines to do so. This is somewhat unprecedented. Thus, the California Supreme Court will have to invent a precedent specifically designed for the occasion.

    I believe the likelihood of standing being granted is reasonably high.

    But even if they do, that might not be the end of it.

    Not only can the federal Supreme Court intervene, the state legislature could conceivably do so as well. After all, the courts are interpreting a state election law that isn’t terribly clear. Lawmakers could always go back retroactively and make it clear. Which would likely set off a new round of lawsuits. With Prop. 8 proponents suing the State of California for voter disenfranchisement.

    War without end.

  11. James says

    I, along with many others was so glad when Jerry Brown and Kamala Harris won in the November election since they will not defend Prop 8. Now it looks like that may not matter since the Prop 8 proponents can defend it themselves. How frusterating. I spent weeks watching and stressing over Kamala’s vote count and now it may not even have mattered.

  12. says

    Anyone interested in the analysis of an ACTUAL “legal expert” should go to at 2:30 p.m. PST today for the live chat with The National Center for Lesbian Rights (NCLR) Legal Director and Prop 8 expert Shannon Minter.

    Minter was the lead attorney on the In re Marriage Cases ruling at the California Supreme Court. That was the ruling that began this process; in which the Court ruled that same-sex couples cannot be constitutionally denied the freedom to marry.

  13. anon says

    Standing is one of the hoariest of legal issues because the risk of injustice is so high. It would be a horrible precedent if proposition supporters could not have their day in court (say the proposition was in favor of gay adoption in Fla, for example). However, standing has never been used to further justice, but merely to make cases disappear when they are not wanted by the courts. True, you cannot sue on your neighbor’s behalf if they are injured in a car accident and many ambulance chasing attorneys have made a mint in class action suits for John Does, but in general strong constitutional issues need to be addressed through the courts.

    In this instance, CASC has already tipped their hat that given their past caseload in many issues, standing is presumed on statewide issues (almost anyone can sue over environmental issues, for example).

  14. Brian says

    Your legal commentary is some of the most useful information I get on the Web. Thanks for taking the time to write such detailed, informative analysis so that the non-legal among us (me) can understand. I know that has to be quite time consuming.

    Who’d have thought your years in Law School and passing the bar would lead to such lucrative activity as writing for free for a blog (sarcasm)?? Much thanks.

  15. Rich says

    I would imagine that the 9th Circuit is free to decide under Federal law that the H8ters don’t have standing, but I’m sure they would be happier saying so if the CA Supreme Court says that the state gives them no such right.

    The composition of the CA Supreme Court has changed since they upheld the validity of Prop 8 — I wonder how this might affect their advice to the 9th Circuit.

    Given the uncertain reception marriage equality would get in the US Supreme Court, I suppose that for the 9th Circuit to give them every opportunity to deny certiorari is prudent.

  16. mld says

    wow, i had to reread to understand this. imperial court, meaning the court in imperial county. i thought suddenly some queen of california was being consulted.

    ok so this sounds like just a 5 week delays on an already long road.

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  18. Zlick says

    I think David Bois laid it out correctly at the oral argument hearing: Standing via California law is required, but it is Not Sufficient. Yet the Ninth Circuit has tipped their hand – they simply want cover to grant standing so they can cut their judicial teeth on the juicy constitutional question.

    Read Section III B of the Order Certifying a Question. The Ninth Circuit panel is far from subtle in bludgeoning the California Supremes to invent a special particularized interest of the Proponents or grant authority to lay citizens to stand in for state officials. It’s really rather crass to read how blatantly they are attempting to influence the decision of the Cali Supremes.

    Seeking certification may, by itself, be merely prudent strategy of covering all bases on the way to SCOTUS, but the text of the certification Order seems to reveal the panel is seeking to grant standing by any means necessary. I don’t find that encouraging at all, not least because I prefer the law be followed in matters of law.

  19. JJ says

    @Anon: “It would be a horrible precedent if proposition supporters could not have their day in court”

    I have to disagree. For one, the sponsors of Prop 8–as with many California initiatives–are Californian in name only. They represent a long-term, national campaign being waged by the Mormon church, Alliance Defense Fund, et al, who found token representatives in California to act as their proxies and exploit our initiative process.

    Second, initiative sponsors are not answerable to voters. Jerry Brown and Kamala Harris, even if they have biases of their own, still have to satisfy the voters if they want to keep their influence. Thus, their interests are yoked to the voters’ interests through the election process. Initiative sponsors, on the other hand, can advance their own interests in court without a care as to what voters want. To empower them to represent the state as if they will act in the state’s interest is naive and only compounds the injustice that was already inflicted by the public officials who allowed the rights of a minority to be put to a vote.

  20. TommyOC says

    @JJ: As a fellow Californian, I have to disagree with you and agree with Anon.

    I want Prop 8 to die a quick and painless death and for marriage to be the law of the land, however…

    It would be a horrible precedent if proposition supporters could not have their day in court.

    Here’s why: California’s unique initiative process allows for its citizens to directly change the State Constitution (and any law) by simple majority vote. While it’s a system in need of revision, it is the law of the land and a law that has helped this state be progressive (and, admittedly, regressive) in ways most other states couldn’t even imagine.

    That said, if civilian proponents cannot defend their initiatives because they’re denied standing, then the State will be given ABSOLUTE VETO AUTHORITY on any and all initiatives simply by choosing not to defend it in court! That’s not the intent of the initiative process in our State.

    And I would hate for a governor who disagrees with, say, the vital Medicinal Marijuana initiative passed a decade ago, to simply have his way because he refuses to defend the challenges it underwent in court.

    As much as I hate to say this, the California initiative process, as it is presently designed, NEEDS the proponents of Prop 8 to have standing. Anything less is a miscarraige of the electoral process.

    (Keep in mind, the “electoral process” has nothing to do with rights granting or stripping — that’s the role of the judicial process… which is a decision that is presently underway.)

  21. John says


    I don’t buy the alarmist pronouncements coming from Maggie Gallagher and friends that a ruling against them will somehow irreparably harm the nation.

    Governors are also elected by a simple majority.

    As are Attorney Generals.

    If Californians viewed defending Prop. 8 as such an urgent priority, they could have just as easily elected MEG WHITMAN and STEVE COOLEY. It was an issue that was raised during the campaign. It was mentioned numerous times on the news as well. It is not as if the voters were blind sided by any of this.

  22. John says

    And for the purposes of perspective:

    It should be noted that civilian interveners attempting to defend a same-sex marriage ban without government authorization were denied standing in both Canada and South Africa by those nations’ highest courts. Americans might find it cruel and unusual that individuals can’t act as their own Attorney General in lieu of the state. But this is definitely not standard practice in other common law nations.

    If citizens have a problem with the way a particular law is being defended, then they can always vote in a new government. They don’t get to assume the role of the state in court though. That is quite extraordinary and would be met with incredulous stares from judges anywhere but here.

    In some sense, we are actually dealing with an example of American exceptionalism. There’s really nothing about this situation that is “normal.”

  23. middleoftheroader says

    The choice is to be practical and successful in terms of a final decision that allows same sex marriage in CA to take place, or to be impractical and unsuccessful in terms of a final decision that is a death knell for any constitutional right to same sex marriage anywhere in the US.

    If the Prop 8 supporters don’t have standing, the case is essentially over; the US Supreme Court won’t undo that decision, and so same sex marriage will survive in CA.

    If Prop 8 supporters have standing, and even if the 9th Circuit upholds Judge Walker’s ruling that the constitution prohibits the elimination of same sex marriage in CA, there is NO CHANCE that the current US Supreme Court is going to uphold a ruling that banning same sex marriage is unconstitutional. If any of you think for one moment that Justice Kennedy is going to vote this way (just because he authored the Lawrence case that overturned Bowers), then you are way out of touch with reality. Sorry. I wish it was otherwise, but not with this Supreme Court.

    So be practical and wish for a ‘no standing’ ruling that allows same-sex marriage to remain in CA. If that happens, then in a couple of years after more states — NY, Maryland, etc — adopt same sex marriage, it will be recognized in states with probably 50% of the population. Because of that, there will be more child custody disputes, property disputes, tax disputes, etc. that will spring up in the courts as same-sex married couples move from state to state. That’s the best hope for the US Supreme Court saying that same-sex marriage performed in some states has to be recognized in other states. I don’t think that even Justice Kennedy would say that a child with two same-sex parents in MA or CT suddenly ‘loses’ one parent — and becomes a child of only the other parent — because the parents moved to another state like OH; or that a parent who is recognized as one of two same-sex parents of a child in MA is suddenly no longer recognized as a parent if the two parents move to OH. That would likely be a violation of due process or equal protection to the children and/or the parents.

    That is the best way to ultimately win on the same-sex marriage issue; and not expect the US Supreme Court to rule that CA voters cannot adopt Prop 8. Let the CA case be decided on standing, and save the victory for a later day — which is the only way it will come in our lifetimes.

  24. middleoftheroader says

    A further followup:

    Having read again the 9th Circuit’s reasons for certifying the standing question to the CA Supreme Court, I would not assume that it’s likely the CA Supreme Court will find standing for the initiative proponents. Here’s the analogy: A state legislator sponsors a bill that the legislature enacts into law, and then that law is challenged in court; the plaintiffs in the lawsuit sue the Governor and Attorney General who are required to carry out that law, but the Governor and Attorney General refuse to defend the lawsuit; the state legislator who sponsored the law is allowed to intervene in the lawsuit; the court rules in favor of the plaintiffs, and the Governor and Attorney General refuse to appeal. Does the state legislator who sponsored the bill really have the legal standing to appeal? I don’t think so.

    The above situation is a “political dispute” — meaning that if the Governor and Attorney General have a legal duty to defend but refuse to do so, the remedy is not to give standing to the state legislator — but instead, the remedy is either to try to impeach the Governor and Attorney General for not doing their jobs, or to enact a new law that specifically provides separate standing to the sponsor of the law (or any legislator who voted for it), etc. But for the courts to get involved in a “political dispute” between the legislature and the executive (Governor and Attorney General)is generally the type of “non-justiciable” controversy that courts like to avoid.

    To me, the same analogy applies to Prop 8 — even though the proposition proponents were essentially the “voice of the people” whom ultimately voted for the law at the polls. If the legislative sponsor of a bill does not have standing to appeal when the Governor and Attorney General refuse to appeal, then why should some un-elected private persons — the sponsors of the proposition — have standing to appeal a ruling that the Governor and Attorney General refuse to appeal? It’s easy to say that the proponents of the proposition are the “representatives of the people” who must be given standing to appeal, but so are elected legislators (even more so) the “representatives of the people”.

    The right result would be for the CA Supreme Court to rule that there is NO specific state provision that gives legal standing to proposition proponents AFTER a proposition has been passed at the polls — and the CA Supreme Court should not implicitly create such a standing provision because, to do so, intrudes on the political decisions that the voters have placed in the hands of the Governor and Attorney General on how court litigation should be handled. This is a political, non-justiciable matter.

  25. Zam says

    You said:
    Not only can the federal Supreme Court intervene, the state legislature could conceivably do so as well. After all, the courts are interpreting a state election law that isn’t terribly clear. Lawmakers could always go back retroactively and make it clear.

    Article I, Section 9 of the US Constitution specifically prohibits the passage of ex post facto laws.
    Article I, section 9 of the California Constitution prohibits the same.

    Laws cannot be passed to have retroactive power or authority. Any such laws to guarantee standing for proponents passed either by referendum or by the legislature would only grant that standing in new cases.

    Until then, the California Supremes have the option to grant or deny that standing.

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