Berman & Asbel, LLP

9th Cir. Denies Prop 8 Stay While Standing Issue goes to CA Supreme Court

In the Proposition 8 gay marriage ban case in California, the U.S. Court of Appeals for the 9th Circuit has denied the plaintiffs' request for a removing the stay on District Judge Vaughn Walker's ruling that Prop 8 was unconstitutional.  Judge Walker's original order would have allowed marriage of gay couples to resume in California but then the Court of Appeals issued a stay pending appeal.

A decision on the constitutionality of Prop 8 by the 9th Circuit Court is awaiting a decision first by the California Supreme Court on the issue of standing.  A key issue in this appeal is whether the supporters of the Prop 8 gay marriage ban have standing to appeal Judge Walker's decision.  The lawsuit challenging Proposition 8 named then Governor Arnold Schwarzenegger and then Attorney General Jerry Brown as defendants in the case.  Schwarzenegger and Brown, however refused to defend the law in court.  Brown continues to take that position now that he is Governor.  The individuals and organizations who put Prop 8 on the ballot are seeking to defend the law.  The question is whether these private individuals and organizations have the legal right or standing to even appeal Judge Walker's decision.

The U.S. Court of Appeals for the 9th Circuit where the appeal was filed, a federal court, decided that this standing issue is an unclear question of California state law.  The 9th Circuit invoked a procedure to certify a specific question of state law regarding this standing issue to the Supreme Court of California since that court is the final authority on what is the state law of California.  The lead attorneys for the plaintiffs challenging prop 8, Ted Olsen and David Boies, had argued that standing in federal court is a question of federal law and thus there was no need for the certification to the California state Supreme Court.  See article by Melanie Nathan for more on this point.

So, a decision by the California Supreme Court on the standing issue must come first.  Only then will the 9th Circuit possibly take up the underlying constitutional merits of the Prop 8 challenge.  On the other hand, if the California Supreme Court rules the Prop 8 supporters have no standing to appeal, the 9th Circuit would then probably dismiss the appeal.  The supporters of Prop 8 might then attempt to appeal to the U.S. Supreme Court.  Whatever happens, these appeals will go on for a long, long time.

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