The Ninth Circuit Court of Appeals is kicking the Proposition 8 case back to the California Supreme Court.I'm no legal expert, but I must say I like our chances on this part of the argument.
The federal Appeals Court said today that is asking for guidance from California on the issue of "standing," which is the right to bring a lawsuit due to a sufficient harm from and connection to the matter being considered. The court said that it could not consider the constitutionality of Proposition 8 until the issue of standing is resolved.
The court wrote that there is no precedent for deciding whether the official proponents of a California initiative - in this case Proposition 8, which bans same-sex marriage - have the right to "defend the constitutionality of that measure...when the state officers charged with the laws' enforcement, including the Attorney General, refuse to provide such a defense..." Both Arnold Schwarzenegger and Jerry Brown, in their [previous] incarnations as Governor and Attorney General, declined to defend the proposition.
Update: Andrew Cohen's take on the 9th Circuit ruling:
...the trial court ruling by U.S. District Judge Vaughn Walker, which vitiated the factual and legal underpinnings of Proposition 8, still stands. And so do stringent "standing" rules. If the California Supreme Court agrees with Judge Walker - that there can be no appeal without the formal support of California's executive branch and especially its chief lawyer - Proposition 8 will be in even worse legal shape than it's been in for the past 6 months. And that's saying something.
