November 18, 2011
Prop. 8 supporters have standing in California court, but what about federal?
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:
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: