legal theory

Do We Want The CA Supreme Court To Say Has Standing To Appeal Perry?

To the disgust of plenty, the California Supreme Court has agreed to look into whether has standing in Perry v. Schwarzenegger to appeal the case in federal court. The Ninth Circuit asked the Supremes to interpret their own state law, which plenty of opponents to Prop 8 will tell you is a flawed legal theory, since it’s not the job of a state court to tell a federal court whether a party to their case is in the right. Oral arguments on the matter will be “expedited,” which for the court system means they could begin “as early as” September. At issue is Article II, Section 8 of the California Constitution, which states “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.” And while, in public, the American Foundation for Equal Rights and other gay advocates want the Supremes to deny standing, and thus have the Ninth Circuit kill the appeal, doing so would inhibit Perry‘s chances of reaching the federal Supreme Court, which is where plenty want to see this go.

Get Queerty Daily

Subscribe to Queerty for a daily dose of #california #californiasupremecourt #marriage stories and more


  • McMike

    No we don’t.

  • B

    “The Ninth Circuit asked the Supremes to interpret their own state law, which plenty of opponents to Prop 8 will tell you is a flawed legal theory, since it’s not the job of a state court to tell a federal court whether a party to their case is in the right.”

    Huh? All that’s going on here is that the Ninth Circuit Court asked the CA Supreme Court to rule on whether the defendants had standing to appeal, an issue independent of whether the defendants are right or wrong. It is a completely sensible thing for the Ninth Circuit Court to do – members of the Ninth Circuit Court are supposed to be experts regarding federal law, not state law, and the question of standing depends on state law.

    It will take the California Supreme Court fewer man hours to decide this than what the Ninth Circuit Court would need, as the California Supreme Court does not have to get up to speed on California law, dealing with it every day.

  • scott

    I want Prop 8 to die a thousand deaths (my anger over it proved one of the last spurs to me coming out), but the Ninth Circuit and California Supreme Court are doing the right thing. Standing is determined by state law, and in such an important case the Ninth Circuit wants to get it correct (and avoid a remand if it went to the US Supreme Court). I also hope there is standing because, odious though Prop 8 was, the voters did pass it, and I’m troubled that the governor could defeat an otherwise valid initiative by refusing to appeal. I might be on the side of an initiative the governor/AG doesn’t like and would like for the sponsors or someone to defend the initiative. plus, I want a decision on the merits.

  • justiceontherocks

    When a state law issue is part of a federal case, the federal court is bound to follow the rulings of the highest court of the state involved (unless it finds the ruling unconstitutional). Because California has never decided this particular question of standing, the three judge panel shipped it back over for a ruling. This happens frequently.

    There’s a political reason for the three judge panel to do this: the case will eventually be heard by all the judges of the circuit, and the panel of three does not want its ruling overturned because it didn’t get the California law correct.

  • DR

    Actually, it’s not a big deal for this case to go to the US Supreme Court. With the current makeup of the Court, it’s more than likely that this case will, at best, result in a limited holding invalidating Prop 8 as opposed to a sweeping ruling banning any and all bans on SSM. This will probably be closer to Romer v Evans than Loving v Virginia.

  • Jared

    State courts sometimes get to tell federal courts what to do when the issue is one of state law. There’s nothing potentially flawed about it.

    We should be annoyed that the court wants briefing and oral arguments on this issue. Delay, delay, delay. The issue is simple and they already have access to briefs on the same issue, i.e., the briefs the parties filed when they were trying to get the federal court to decide the state-law issue.

  • justiceontherocks

    @Jared: 1) State courts don’t get to tell federal courts what to do. That’s not correct. What they do is rule on a question of state law. They do not decide any question for a federal court.

    2) This is not a simple issue. It can be simply stated but legally it is not simple. The CSC will want oral arguments on it because the judges will normally have concerns not addressed in the briefs. That’s what judges do.

  • Joe B

    that’s not what Article 2 section 8 states. There is a transcription error here. Article 2 section 8 outlines the way that an initiative can be put on the CA ballot. It says nothing about judicial appeals. That’s the problem.

  • Steve

    The question of same-sex marriage is going to get to the Supreme Court, eventually. We need it, because there are some states that will never allow same-sex couples to marry otherwise.

    We clearly want the best and strongest case to be the one that is decided by SCOTUS. The California Prop-8 case seems to be a good candidate. Olsen and Boies have presented a very compelling case, and the defense has failed to present much at all. It is not clear that any other case could have a better argument.

    The question that the Federal circuit has asked the California court to decide is about “standing”, not the merits of the case. If the proponents don’t have standing, the case is over, and some other case will have to go through the whole process from scratch. During the intervening years, California would have marriage equality, but those marriages would not be recognized in many other states.

    For the narrow interests of California residents who never travel out-of-state, that might be satisfactory. But, for everyone else, including Californians who might travel, we need the right to marry to be recognized by the Supreme Court.

  • antonyvietnam

    Although I fell sad when hearing that the sponsors of Proposition 8 had authority to defend the prop. 8, I would like the Prop 8 to reach the US Supreme Court.

    The decide of this court have national impact. If the ruling is on side gays, It’s not only good for California but also for all the US.

    However, I hope gay people can marry while the pro. 8 are appealing to the U.S. 9th Circuit Court of Appeals or The US supreme Court.

  • grayyoung

    i hope they have standing so that the case will be decided on merits. there are two interesting sides at play here. if they are ruled as having standing, it will force the courts and possibly the supreme court to finally make a ruling on gay marriage that could become the law of the land. if it is to happen in the next decade this is the case and the lawyers to do it. however, for the crazies to be ruled as not having standing would kind of be like a defeat of their argument at its core anyway. the point is that they dont have the right to decide who can marry and who cant. if they dont have standing, then they dont have the right to tell people that. its kind of an implicit f u to the crazies if that is what ends up being the ruling.

  • Devon

    People seem way too optimistic about the supreme court…Taking it that far could backfire spectacularly. I’d rather see Walker’s ruling upheld only in California than have SCOTUS rule against gay marriage and possibly set the whole movement back by years.

  • B

    No. 6 · Jared wrote, “We should be annoyed that the court wants briefing and oral arguments on this issue. Delay, delay, delay.”

    Keep in mind that the upper level courts are swamped with cases. They are probably trying to maximize throughput – how many cases get decided per year. Delaying one case to allow it to be handled more efficiently (e.g., by passing one question to the California Supreme Court) does not mean the 9th Circuit Court is twiddling its thumbs – it will be working on other cases in the meantime. The California Supreme Court similarly saves time by telling the lawyers on both sides to present their best arguments.

    Now, it can be personally annoying when you have a stake in the outcome, but there is a reason for it, and everyone else who has a pressing issue feels the same way – everyone wants to be at the head of the line.

  • Schteve

    @Devon: Yeah, getting to the Supreme Court ASAP isn’t necessarily the best course of action.

    Take Bowers v. Hardwick, for example. The court narrowly upheld anti-sodomy laws when it decided this in 1986. Just over 18 months later, Kennedy replaced Powell, who had been in the Bowers majority, on the court, and we all know Kennedy wrote the opinion in Lawrence v. Texas that overturned that in 2003. It took another 17 years for the court to correct itself whereas it very well may have decided correctly in 1988 had a case not reached it so soon.

    That’s not to say there’s a science to this, or any notion of a “right time”. But there’s no telling how Kennedy would rule on Prop 8. And while he’s been very pro-gay before, it’s also perfectly likely that he would agree with a majority only on narrow grounds against Prop 8, leaving similar bans in other states intact.

    Personally, I would much rather see Prop 8 repealed with another initiative amendment just so we would have ammo to shove down the throats of NOM, et al who love touting the fact that same-sex marriage has lost at the ballot box in every state that has voted on it. I would be ecstatic to see voters finally demonstrate a majority’s explicit desire for same-sex marriage by repealing a former ban.

  • GetBalance

    With oral arguments scheduled in September, with a post 90 day window for decision, that pretty much pushes this entire case into 2012. If CSC approves standing, then we go to NCC appeal, which has another long time line. The poles show that California will secure gay marriage via the ballot box in 2012. I agree. However, my hope is that the NCC rules before that, if standing is granted, as we need that ruling to go in our favor, which I am confident would happen.
    If CSC denies standing, we may have Christmas season gay marriages this year. That would be a nice Xmas gift to top off the holiday season.
    However, it then means another state will have to take up the cross and run it to the USSC. For this very reason, CSC could grant standing and I suspect they feel the USSC would hear the case. Either way, timing is an issue here with the ballot box pulling the trigger in 2012 allowing Cali gay marriage.
    It’s a nail biter, though mine are almost gone at this point.

  • justiceontherocks

    @Devon: You have the best lawyers you will ever have, well respected even by the “conservative” members of the court.They have done a masterful job thus far.

    The outcome of a Supreme Court case will largely turn on the quality of lawyering. I understand the concern when you seem to have three almost certain no votes before ever starting. Nonetheless, this may be our best chance.

  • DR


    Really? Let’s think about this for a second.

    Alito, Roberts, Thomas and Scalia are pretty much guaranteed “no” votes on a sweeping GLB SSM ruling. One or two might be swayed to join in a more limited holding regarding the inability of a state to arbitrarily remove protections once in place. That’s a big “might”. We know from past rulings that Scalia and Thomas certainly won’t.

    Kagan will most likely recuse herself *again* due to her previous employment. If, by some miracle, she actually gets to participate in a social issues case, I see her siding with the remaining four justices.

    Sotomayor, Ginsberg, Breyer and Kennedy are not shoe-ins to make a sweeping, national statement about SSM. While Ginsberg has hinted at a pro-SSM position, it’s just as likely that these four will craft a holding invalidating Prop 8 on the grounds that the process, initiated by sheer animus, is limited solely to this California amendment and not touch the laws of the 40 or so remaining states with legal bans in place.

    This is why I continue to say that the movement in this case is flawed. SSM laws need to be challenged at the state level, not the federal level. There should be forty(ish) pending cases out there right now, not one case in the hopes the US SCt will craft a sweeping, nationwide Equal Protection ruling based on evidence that only *one* state got an amendment passed *after* it granted marriage licences to 18,000 same-sex couples. This is a situation existing in no other state which needs to be addressed, and the facts are far too case-specific for the Court to make a nationwide ruling.

  • justiceontherocks

    @DR: I understand your point but don’t agree. There is no basis for Kagan to recuse as this has nothing to do with the military. I also don’t think Roberts is an absolute “no.” Probable but not hopeless. Remember, we all thought Kennedy was hopeless at one point as well.

    I also disagree that the California situation exists in no other state. It exists in every other state where same sex marriage is not allowed.

  • DR


    Kagan may be eligible, but I stand by my concerns regarding her former position as Solicitor General. I do believe Roberts is a total no-go. At best, he’ll assist in creating a limited holding applicable only to CA; there is no way he’ll craft a sweeping nationwide opinion.

    I absolutely disagree with your unsupported assessment that California is not unique among the rest of the states.

    California is unique because it allowed same-sex marriage for a period of six months, and then via the ballot box said right was stripped from GLB citizens in California; the only recourse in CA are now domestic partnerships, which were not outlawed by Prop 8. There are now two classes of partnered GLBs in CA, those who have “marriages” and those who have “domestic partnerships”.

    No other state in the union has allowed SSM then banned it, creating two classes of GLB citizens. You cannot legally claim that the marriage ban in California has the same impact as the marriage ban in Pennsylvania, for example, because in PA I was never legally entitled to SSM.

    That’s a major difference, and absolutely gives the justices an “out” in crafting an opinion with a very limited holding, which is what I expect them to do. They will craft a holding which applies to California only, based on the unique legal position of the California GLB community.

  • GetBalance

    I’d like a definition of “particularized interest ” anyone got one on the tip of their tongue? Also from what i can tell Article 2 Section 8 carries no language to that affect. If it does can someone provide it?

  • justiceontherocks

    @DR: A lot of people have looked awfully foolish trying to predict what Supreme Court justices will do.

    It’s true that California law changed but that does not at all impact the constitutional questions the SC would consider. They will of course decide the case on the narrowest possible grounds (standing if they can get away with it). But in order to find that current gay couples are discriminated against as opposed to those who were “grandfathered” in, and that they are entitled to judicial relief, you have to find that there is a federal constitutional right that is being unfairly denied couples who want to marry in CA.

  • whatever

    @DR: “Kagan will most likely recuse herself *again* due to her previous employment. If, by some miracle, she actually gets to participate in a social issues case, I see her siding with the remaining four justices.”

    Er, that’s not how recusal works. She has been recusing herself in cases because she has worked on them directly as SG. What work has she done on this? She has pretty much indicated that she won’t even recuse herself on any health care challenge, so why the hell would she on this?

  • Gay - The Terrible Truth

    Same-Sex ‘Marriage’ a Health Risk Doctors Warn Parliamentarians
    February 17, 2005
    “The document, signed by doctors in different disciplines from family medicine, dermatology and neurology, warns that sex as practiced by most gay men, has a large number of diseases associated with it, “many of which are rare or even unknown in the heterosexual population” as: anal cancer, Chlamydia trachomatis, Cryptosporidium, Giardia lamblia, Herpes simplex virus, HIV, Human papilloma virus, Isospora belli, Microsporidia, Gonorrhoea, Syphilis, Hepatitis B and C and others.”

    30 Years Late: APA Psychologists Finally Acknowledge People Can Leave Homosexuality; Call for APA Policy Review at Toronto Conference

Comments are closed.