Judge Vaughn Walker, who heard the case in federal court, ruled in 2010 that Prop 8 violated the U.S. Constitution, and that same sex couples had a constitutional right to marry. The case then went up on appeal to the Ninth Circuit. The Ninth Circuit then asked the California Supreme Court the following question - do proponents of ballot initiatives have the authority to represent the state when the state’s public officials decline to do so? If the CA Supreme Court had ruled that ProtectMarriage did not have standing, or the right to appeal the district court decision, Judge Walker’s decision would have stood, as no party would have the right to appeal it.
This is not what happened. Instead, on November 17, 2011, the CA Supreme Court unanimously decided that proponents of ballot initiatives have the authority to represent the state of California when the state’s public officials decline to do so. The court ruled that ProtectMarriage has the right to defend the constitutionality of Prop 8 and to appeal a judgment invalidating it. Proponents of marriage equality were disappointed in the ruling. Shannon Minter of the National Center for Lesbian Rights called the CA Supreme Court’s decision “terrible” and “dangerous”, and that it gave “initiative proponents unprecedented and virtually unlimited power…”
Since the Ninth Circuit asked the CA Supreme Court for its opinion on the standing question, it is most likely that it will accept this ruling of the CA Supreme Court, and thus the Ninth Circuit will proceed to decide the constitutionality of Prop 8 on its merits. The Ninth Circuit is a progressive court, and advocates of marriage equality are hopeful that the court will rule in favor of the freedom to marry. Both sides generally agree that whichever way the Ninth Circuit rules, there is a strong likelihood that the U.S. Supreme Court will eventually hear the case.
Ruth Dell volunteers for a number of non-profit organizations. She is Spectrum's Marriage Equality Correspondent.
