OMFG What Happened to Prop 8 And Gay Marriage Today?

As you have probably already heard, the 9th Circuit of Appeals made a “ruling” today on the appeal of Judge Walker’s original court decision. It was not actually so much a ruling as a postponement of one, or specifically “certification of a question to the California Supreme Court.” The court has ruled that Imperial County, which tried to intervene in the case, does not have standing to appeal Judge Walker’s ruling. They didn’t make a decision either way, however, on the issue of whether Protect Marriage (aka Yes on 8/h8ers) does have standing. They essentially shot this question right back to the California Supreme Court, which is confusing because it seems very much like this was virtually the 9th Circuit of Appeals’ only job. The exact wording of the question does not clear things up that much:

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, 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. We understand that the Court may reformulate our question, and we agree to accept and follow the Court’s decision.

The issue, clearly, is standing – hopefully someone who actually went to law school will be able to explain this to you more accurately and thoroughly tomorrow, but the very basic idea is that an appellant needs to be directly affected by a ruling in a demonstrable way in order to have their appeal heard by the courts. Or, in legal terms:

Standing to defend on appeal in the place of an original defendant demands that the litigant possess “a direct stake in the outcome.” Diamond v. Charles, 476 U.S. 54, 62. Petitioners’ primary argument–that, as initiative proponents, they have a quasi legislative interest in defending the measure they successfully sponsored–is dubious because they are not elected state legislators, authorized by state law to represent the State’s interests, see Karcher v. May, 484 U.S. 72, 82. Furthermore, this Court has never identified initiative proponents as Article III qualified defenders. Cf. Don’t Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U.S. 1077.

Prop 8 was a ballot initiative, which makes Protect Marriage an “initiative proponent;” as the Court says, initiative proponents have never before been granted what Protect Marriage is asking for. This makes it kind of a long shot for Protect Marriage, but the fact that the 9th Circuit didn’t rule that they were without standing immediately isn’t heartening either.  The question is whether the members of Protect Marriage – namely straight religious conservatives who virulently oppose same-sex marriage – are affected by a ruling that legalizes same-sex marriage. Since whether or not straight people are affected by gay marriage is a major argument in the national debate on the subject, it’s a very interesting question to watch play out. Keep checking back for more information on what this means, and in the meantime, Prop 8 Trial Tracker is hosting a Q&A in their comment threads if you have a specific concern.

To the best of my understanding, the 9th Circuit of Appeals has come to the conclusion that the question of whether Protect Marriage has the standing for this appeal is only answerable by looking at the California State Constitution, which is the job of the California Supreme Court. Does that mean that their ruling will set a precedent for issues like this in the future? We’re not sure. We also have no news on when this next decision will be made, or what to expect. But we’ve been waiting for this victory a long time, and we can wait out every homophobe in every courtroom if that’s what it takes. Or, as Dan Choi says:

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Originally from Boston, MA, Rachel now lives in the Midwest. Topics dear to her heart include bisexuality, The X-Files and tacos. Her favorite Ciara video is probably "Ride," but if you're only going to watch one, she recommends "Like A Boy." You can follow her on twitter and instagram.

Rachel has written 1142 articles for us.


  1. In reality, this just seems like the judges don’t want the responsibility of making a ruling. After what’s been happening in Iowa, I don’t blame them- I mean, when people are willing to threaten a judge’s job security because they dared to do the right thing, yeah, that’s a scary environment to do the right thing in. I guess we’ll see what the Supreme Court of California says?

    • These judges have more job security than anyone in the country. Federal judges are appointed for life and aren’t subject to elections like the judges in Iowa. In this case, asking the Supreme Court of California to weigh in seems a valid attempt to comply with prior U.S. Supreme Court precedent rather than an attempt to get out of ruling on a contentious issue. We’ll see what they have to say, though.

      • It’s amazing how I got a great AP Gov test score and still know nothing about our government. Thanks for clarifying. :) I hope the people next step up rule in our favor, then!

  2. Standing is a good ol’ doctrine of justiciability. (not as fun as mootness or ripeness). It is often used to avoid reaching the merits of the case. I apply it in my life often….”ya know what… i do not even have standing to review this issue…I’m outtie dudes”.
    I wouldn’t be disheartened that they sent this issue back without ruling as it appears to be a standing issue under Cali law.

  3. I can’t handle all this bullshit! I check google news about 3 times a day for the last month (since the 9th circuit court date on 12/6)just to see if they had made a decision and this is best they can do… pass the buck to someone else! What a let down! Thank you overpaid job security judges with no backbone to call for change.. and speaking of change, I thought to myself what a hypocrite OBAMA is for posting his “it gets better” video… when he can even do what it takes to make it better! Stand up for the rights of all your citizens! I think that people forget so easily what they have gained through the years: women being able to vote, African Americans ending segregation, I can go on and on! wake up people.. time make all American equal!! Homosexuality is in every portion of your life, we design the cloths you wear, we create the art you see, the food you eat and again… I can keep going on! Let us live out lives the way want, I have been engaged for over a year now… I just want to marry the man I love. If i hear one more time that my marriage is going to ruin the sanctity of marriage… I am going to loose it… Divorce rate in Cali is over 50%… where is the sanctity in that??? If I can’t marry the man I love, then you can’t divorce the man you hate! I hope that the supreme court does not drag there feet, time to put on your big boy pants, go to work and do the right thing!

  4. “the very basic idea is that an appellant needs to be directly affected by a ruling in a demonstrable way in order to have their appeal heard by the courts”

    ….So the basic arguement is that straight marriage isn’t affected by gay marriage? OH YOU MEAN THAT ARGUEMENT I’VE BEEN MAKING FOREVER?

    Well heck guys, I could totes be defence for this. It’d be like Legally Blonde, Queer Edition.

    • I’d watch that. Even better if they made a musical of it too! You know us queers and singing-dancing people…

  5. i hope this prop 8 business gets resolved before rachel gets tired of writing about it, if not, i will be so lost

  6. This is really strange! Federal law regarding standing under the US constitution must be different than standing doctrine under CA state law. To me, that means that the 9th Circuit must use federal law to make this decision independent of CA law. I hope the Cal Supremes reject the 9th Circuit’s request for an advisory opinion as nonjusticiable. The federal courts don’t have jurisdiction to issue advisory opinions, so it’s ironic that the 9th Circuit now itself requests one.

  7. The issue of standing has arisen because the defendants in the original case (the Governator and the State of California) do not wish to, and have not, appealed the ruling of the Federal District Court. The issue that has been raised is whether the homophobe organization which joined as a defendant has standing to appeal. You ladies are throwing a hissy fit over the wrong thing–you don’t want them to have standing–then the District Court ruling stands (though, of course, this would be appealed to SCOTUS)

    The certification device is just something the federal courts sometimes use to make a determination of an issue of state law which they need inorder to rule on federal issues.

    No big conspiracy or anything of the kind.

  8. “But we’ve been waiting for this victory a long time, and we can wait out every homophobe in every courtroom if that’s what it takes.”

    People I Am Thankful For:
    + Rachel K.

  9. Say what?
    Is it a perk that I live in the homophobic South so I don’t have to try to understand legal stuff, since it never even gets started?

  10. Hey Rachel, thanks for still writing this even though you don’t entirely get it. I’m glad I’m not the only one, because I got an e-mail from HRC and just stared, because I didn’t know what they were talking about and whether or not it was important.

  11. I really don’t understand why it is so hard for you guys to understand what is going on. The Ninth Circuit can’t rule on the constitutionality of Prop 8 until the California Supreme Court rules on standing. The Ninth can’t rule on standing as that is an issue that has to be deciding by the California Supreme Court. If they rule they don’t have legal standing, then the Prop 8 appeals case is thrown out and the original ruling by Judge Vaughn Walker legalizing Gay marriage would go into affect. But if the court rules they have legal standing to appeal then the Ninth Circuit can issue its ruling on the constitutionality of Prop 8. And thus giving the opponents the legal (standing) right to appeal the Ninth Circuits ruling to the United States Supreme Court.

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