And Now, a Word from the California Supreme Court...

This week the Ninth Circuit opted not to make a decision regarding the constitutionality of Proposition 8, California's controversial ballot measure banning gay marriage. Instead, the judges have sent an important procedural question to the California Supreme Court.

Last year U.S. District Judge Vaughn Walker ruled that Proposition 8 was unconstitutional. Then late last year a three-judge panel of Ninth Circuit judges heard arguments on two primary questions, only one of which dealt with the constitutionality of Prop 8. The other issue asks whether proponents of a ballot measure have standing to defend and/or appeal a decision invalidating that measure. In the Ninth Circuit's ruling they phrased the question of standing this way, whether proponents possess "either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity."

So here's where it gets interesting. When the legal odd couple - David Boies and Ted Olson, attorneys on opposing sides of the case to determine a presidential election, Bush v. Gore - joined forces and filed suit in federal district court to have Proposition 8 declared unconstitutional, they sued, among others, Governor Schwarzenegger and then-Attorney General Brown. Both Schwarzenegger and Brown opted not to defend the suit. Judge Walker allowed a group called "Protect Marriage" to defend the measure instead.

Schwarzenegger and Brown then both decided not to appeal the decision to the Ninth Circuit. Now the proponents of Prop 8 are arguing that they have the ability to appeal the case.

The three judge panel of Ninth Circuit judges sent the case to the California Supreme Court, asking them to determine whether the proponents of Proposition 8 have standing to appeal the district court decision. The state's highest court does not have to issue an opinion, but it is likely to do so. If the California Supreme Court decides not provide guidance on this issue, the Ninth Circuit will likely dismiss the case, finding that they lack jurisdiction to proceed because there is simply no one left standing. Similarly, if the California Supreme Court finds that there is no standing to appeal, that means that one district court's ruling will determine the validity a measure passed by a majority of California voters. In this case, that likely means that gay marriage will be legal in California.

To put this in context, going forward this would mean that 50.1% of California voters could decide to approve of a ballot measure, and if one district court judge decides to disapprove of it and state officials refuse to defend it, its history. Is that a bad thing? Not necessarily so, the judiciary is intended to act as a defense of minority rights against potential majoritarian overreaching.

There's one more wrinkle to think about. The California Supreme Court could also find that ballot proponents do not have standing to defend a measure at the trial level. That would mean that opponents of a successful ballot measure could sue in federal court, and there could be no one to defend that suit. In that circumstance a judge could enter a default judgment in favor of the ballot proponents. The impact of such a finding would have far reaching affects much beyond the issue of gay marriage.

Photo at a Prop 8 rally outside San Francisco City Hall by Flickr user Steve Rhodes. It is used under a Creative Commons License.

About the Author

Jessica Levinson is an Associate Clinical Professor at Loyola Law School. She focuses on the intersection of law and government.
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