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November 17, 2011

California Supreme Court Rules Prop 8 Proponents Can Defend State Interests Without State Officials

The Prop 8 litigation drags on. Today, the California Supreme Court ruled that the proponents of ballot initiatives have special authority under state law to represent the state of California when the governor and attorney general decline to do so.

The official site is having traffic difficulties, I'll get a link up to the decision when I find one that works. Here (PDF); and a mirror (PDF).

The case now goes back to the 9th Circuit, which was stuck on whether the Prop 8 proponents even have standing to appeal. I raised that issue the day of the district court decision and it turned into such a mess the 9th Circuit had to ask the California Supremes for help.

Did this help? Probably. The hold-up for the 9th Circuit was whether the proponents had any injury or interest in the outcome of the litigation that sets them aside from the population at large. The California Supreme Court is saying that they do have such an interest under state law. It is likely that the 9th Circuit will find that they therefore have such an interest under federal law.

It's big news if the 9th Circuit decides to go ahead on the merits of the constitutionality of Prop 8. If the proponents didn't have standing, the case would have been done. California would have gay marriage, but there would be no binding precedent in the 9th Circuit and no chance for possible binding precedent from the Supreme Court.

Both sides, by the way, are saying that they're pleased with the decision.

Oh, and the other litigation is still alive: There are two other parallel track Prop 8 appeals in the 9th Circuit and they don't suffer from any standing questions. They are: (1) whether Judge Walker's decision finding Prop 8 unconstitutional should be stricken entirely because he failed to disclose that he was in a committed same-sex relationship while he was ruling on whether same-sex couples could get married; and (2) whether the video tapes of the trial should be unsealed and available for the public to see.

Proponents very much want the decision below to be voided. They also want to keep the trial videos sealed.

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posted by Gabriel Malor at 01:11 PM

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