Prop 8: Back to the California Supreme Court

The fate of Prop 8 has moved through the federal legal system with relative speed — until now.

A three-judge panel of the Ninth Circuit Court of Appeals is kicking a dicey and important procedural question — whether propopents of the California ban on same-sex marriage actually have standing to appeal — to the state Supreme Court. They argue that it is better left to that court to provide clarity on a matter of state constitutional law.

Last month, during oral arguments, they raised just such a possibility, on the grounds that it is unclear what the rights of the official proponents are when the official defendants in a case refuse to appeal. Then-California Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown, who are the official defendants in the case, refused to appeal Judge Vaughn Walker’s decision because they agree that Prop 8 is unconstitutional.

In their written opinions issued on Tuesday, the federal appellate judges appeared to be wary of just ruling that the proponents had no standing, and noted that it essentially would give the governor and attorney general an indirect veto over an initiative.

The appellate judges did reject an effort by Imperial County to get standing in the case, finding fault with the fact that their effort was led by the deputy county clerk, and not the clerk herself.

Perhaps most surprising in the series of rulings was a concurring statement written by Judge Stephen Reinhardt. He sought to clarify why they were sending the matter to the state Supreme Court, but expressed some exasperation at the parties, and the legal team challenging Prop 8 in particular, that the whole matter has gotten stuck at this procedural hurdle.

He argued that the standing issue could have been “wholly avoided.” He said that had the plaintiffs’ team, by Ted Olson and David Boies, filed their case against a broader set of defendants, they could have more simply obtained a statewide injunction after Walker’s August verdict. What’s more, had they filed suit against all of California’s counties, there would have been more options for one of those counties to step up and defend Prop 8. “Why preeminent counsel and the major law firms of which they are a part failed to do that is a matter on which I will not speculate,” Reinhardt.

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