The 9th Circuit Court of Appeals partially rejected standing for one set of opponents of gay marriage in the Prop 8 case, and remanded the question of standing for another set over to the California Supreme Court.

Two separate groups sought to appeal the ruling from US District Court Judge Vaughn Walker, who determined in Perry v. Schwarzenegger that Prop 8, the ballot measure banning gay marriage in the state, is unconstitutional. The defendants in the case, the state of California, agreed with Walker’s ruling and chose not to appeal it. Both Imperial County, California and the group of Defendant-Intervenors from the original trial, ProtectMarriage.com (who are basically the sponsors of Prop. 8 in the first place), appealed.

Today’s 9th Circuit ruling has two parts. On Imperial County, the court said that they did not have the standing to appeal. However, for ProtectMarriage.com, the 9th Circuit sought a ruling from the state Supreme Court. Here’s an excerpt from that ruling:

Because we cannot consider this important constitutional question unless the appellants before us have standing to raise it, and in light of Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (“Arizonans”), it is critical that we be advised of the rights under California law of the official proponents of an initiative measure to defend the constitutionality of that measure upon its adoption by the People when the state officers charged with the laws’ enforcement, including the Attorney General, refuse to provide such a defense or appeal a judgment declaring the measure unconstitutional. As we are aware of no controlling state precedent on this precise question, we respectfully ask the Supreme Court of California to exercise its discretion to accept and decide the certified question below.

Pursuant to Rule 8.548 of the California Rules of Court, we request that the Court answer the following question:
Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess 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 upon its adoption or appeal a judgment invalidating the initiative, when the public
officials charged with that duty refuse to do so.

Back in August, I examined the precedent of Arizonans for Official English, finding that the Supreme Court vacated a 9th Circuit ruling in that case because they found that the sponsors of a ballot initiative did not have standing to challenge on appeal. The 9th Circuit looks to be covering its bets here. They would rather the state Supreme Court weigh in on how California law looks at the standing issue in this case, before making a determination of their own.

It will be interesting to see how the state Supreme Court rules on this. The last time they were faced with the question, when No on 8 tried to get them to overturn Prop 8 based on state law, they essentially said that they could not interfere with a Constitutional amendment passed by the voters. My suspicion, confirmed by Robert Cruickshank, is that the state Supreme Court would allow standing, and thus the 9th Circuit would have to rule the case on the merits.

Basically, California’s constitution and various CA Supreme Court decisions in the last few decades have indicated that the initiative power is a right inherent to the people of the state, and does not stem from the Legislature. It sets up the people as a kind of fourth branch of government. And therefore, if the Governor and the Attorney General refuse to defend a proposition in court, that could essentially nullify the fundamental rights of the voters. Since ballot initiatives stem from the people, presumably the people – in the form of the initiative proponents – DO have standing to defend Prop 8 in court and to appeal it to the 9th Circuit in order to preserve the people’s initiative power […]

In which case, the 9th Circuit would then rule on the issue of Prop 8’s constitutionality. I am guessing that their ruling will be to uphold Judge Walker, otherwise they would just say Prop 8 is constitutional and moot the question of standing.

I think that’s the proper reading of the California Supreme Court’s perspective, and of what the 9th Circuit would do as a result. While this has major implications for California – basically we’ve outsourced Constitutional protections to mob rule – it means that the 9th will have to rule on the merits of the case, and if they join with Judge Walker, that means another step into legalizing same-sex marriage through the courts. Regardless of the outcome, I suspect it will go up to the Supreme Court, where Anthony Kennedy will doubtlessly have to decide the fate of marriage equality for the near term.