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The issue of whether or not proponents of Prop 8 have “standing” has been tossed back to the California Supreme Court for a decision.  The Ninth Circuit Court of Appeals has requested an interpretation of California law that would permit the Prop 8 proponents to appeal.  Once that decision has been made – assuming it is determined that the proponents do have standing -the Ninth Circuit panel will move on the merits or the substantive constitutional issues of the case.

Arguments supporting a ruling for ‘standing”

There is a history.  The California Supreme Court ruled that proponents had standing in the Strauss v. Horton case (2009).  This was the case that determined whether or not Prop 8 was the proper subject of a ballot initiative.  There are other unrelated cases where-similarly situated proponents of initiatives were given standing by the California court.

Secondly, if the court rules that the proponents do not have standing, then the ballot initiative process in California is in question.   The governor and officers of the state will have been given the power to override a citizen vote simply by refusing to defend a successful initiative.

How might this all play out?

If the California Supreme Court declines to rule (and they could), then the Ninth Circuit will be left to make the decision on standing.  Legal analysts seem to agree that the Ninth Circuit appears to want the standing issue resolve before the case reaches the U.S. Supreme Court where that court could rule only on that issue.  The U.S. Supreme Court could simply decide the proponents of Prop 8 don’t have standing – game over – same-sex marriage in California would become legal again.  Thus there would be no U.S. Supreme Court ruling on the definition of marriage itself that would impact the rest of the country.  Again, it is widely believed that the majority of the Ninth Circuit panel want to push the constitutional issue of same-sex marriage upon the country’s highest court.

All of this back and forth in the courts is going to take some time; many, many months.  Same-sex marriage advocates plan on pushing for a repeal of Prop 8 in 2012 and claim that they will settle the issue in California before the courts can get it done.  We’ll see.

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