Today, the 9th Circuit Court of Appeals issued its first rulings in the Proposition 8 case that will determine the fate of same-sex marriage in California (and will likely reverberate nationwide). The court didn’t decide whether or not it agrees with a lower court’s ruling calling the ban on same-sex marriage unconstitutional. Instead, the 9th Circuit today did three things: it told Imperial County that its lawyers do not have the right to defend the ban in federal court, since the state of California has declined to do so; Judge Reinhardt issued an explanation of why his wife’s work for the ACLU does not disqualify him from considering the Prop 8 case; and the court sent the big question, of whether or not the private citizens who wrote and supported Proposition 8 have the right to defend it, to the California Supreme Court for clarification. This issue–of standing–has been a source of much speculation since summer, when Judge Vaughn Walker hinted that the issue would be a big one at the higher court level. With these latest developments, it’s time for the latest round of the Proposition 8 guessing game:
Calitics argues that the 9th Circuit will eventually agree to let Prop 8′s opponents defend the measure. In their ruling, the judges wrote that California would be “ill-served” if a voter-approved initiative could be so easily tossed out if elected officials decline to defend it in court. Calitics also predicts that the 9th Circuit will agree with Judge Vaughn Walker and declare the ban unconstitutional.
Over at KQED, Scott Schafer points out that a new chief justice over at the California Supreme Court makes it hard to predict how the court will handle its response to the 9th Circuit. He also predicts that the standing question will go to the US Supreme Court before it’s resolved.
The Atlantic, meanwhile, keeps the guessing to the nearly knowable: the 9th Circuit’s actions, Andrew Cohen writes, means major slow-down. The California Supreme Court probably won’t answer any questions about standing for another six to nine months. Then the legal tangle becomes even more embroiled. If the court finds that Prop 8′s proponents lack standing, then the 9th Circuit will dump the case. Which will then leave the Prop 8′s proponents the (likely) choice of appealing the 9th Circuit’s decision to ask the California Supreme Court to determine the question in the first place. And so on and so on, before any remaining court will even get to the question of whether the same-sex marriage ban is unconstitutional. Which means that if the Prop 8 case ever reaches the US Supreme Court on its merits, it’s useless to speculate on the outcome: a whole new set of justices could be on the bench by then.