Jewish Journal

Prop. 8 supporters have standing in California court, but what about federal?

by Brad A. Greenberg

November 18, 2011 | 9:11 am

It was big, but not unexpected, news that the California Supreme Court ruled yesterday that supporters of Prop. 8 have standing to defend the constitutionality of the voter-passed constitutional amendment limiting marriage to the union of a man and a woman. The deckhead for an LA Times editorial explained the consequences of the holding this way:

The California Supreme Court’s ruling on standing means the same-sex marriage initiative will be adjudicated on its merits. It should once again be found unconstitutional.

But that is not correct. The U.S. Ninth Circuit Court of Appeals, to which the group ProtectMarriage appealed an earlier ruling invalidating the law, had certified the question of standing to the California Supreme Court. They wanted to know whether Prop. 8 supporters would have standing to defend Prop. 8 in state court. But the state courts are not bound by Article III of the U.S. Constitution and, even if they were, the California Supreme Court cannot give a binding ruling on federal law to a federal court.

The decision yesterday was merely instructive of how California courts would treat such an appeal. That is important information, but it doesn’t mean that Prop. 8 will definitely be “adjudicated on its merits.” The Ninth Circuit still needs to determine whether ProtectMarriage has standing in federal court.

However, in this case it seems likely that the Ninth Circuit will proceed onto the merits. As Eugene Volokh explains, the question of who gets to represent the state in federal court is a matter of state law:

It’s clear that when a state loses a case at trial, the state may choose to appeal or not to appeal. But who gets to represent the state in making that decision? We’re used to the notion that the “Executive Branch” makes that decision, since that’s the standard federal answer. But of course in many states, including California, there are several separately elected officeholders. Is it the Governor who gets to speak for the state? The Attorney General? The head of an independent state agency, if the state agency made the decision that is being challenged? Someone else? That question of who gets to represent the state in federal court is a matter of state law, and uncontroversially so.

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Since launching the blog in 2007, I’ve referred to myself as “a God-fearing Christian with devilishly good Jewish looks.” The description, I’d say, is an accurate one,...

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