Home > 365gay column, Proposition 8 > Analysis of Today’s Prop 8 Decision

Analysis of Today’s Prop 8 Decision

It’s over at 365gay.com.

In brief, the Ninth Circuit panel punted the decision on standing over to the California Supreme Court. After analyzing the court’s opinion — which is carefully constructed to get the court to find that there is standing, I ask:

What does it all mean?

First, the California Supreme Court doesn’t have to answer the question put to it. If it refuses, the issue will be thrown back to the Ninth Circuit, which will then have to make its best guess. (If the composition of the panel is the same, the answer to the standing question will be “yes.”)

Second, it’s very clear now that the panelists really want to answer the monumental constitutional issue put before them. They have just made it much harder for the Supreme Court to dodge the question on the basis of standing, as would have been likelier had the judges simply ruled – one way or the other – on standing. In that case, the losing side would have appealed that ruling to the high court, which could simply have decided there’s no standing and thereby allowed same-sex marriages in California – but only there – to continue.

But if the California Supreme Court finds that the Prop 8 proponents have standing – and it will – then it would become harder for the U.S. Supreme Court to disagree, given the Court’s statement in Arizonans for Official English about the importance of state law.

Third, this decision really pushes back the ultimate day of reckoning. The California court can take its time deciding whether to certify, and then call for briefs, then schedule oral argument, then render a decision….And whoever loses the standing issue is likely to appeal that issue, perhaps twice (to the Ninth Circuit en banc and then to the Supreme Court) before we even get to the merits.

If ever. Because the voters could themselves make all of this moot by voting to repeal Prop 8, which could happen in 2012. Suddenly, that doesn’t seem so far off.

  1. No comments yet.
  1. No trackbacks yet.