No More Standing Around: 9th Circuit Punts Prop 8 Case to California Supreme Court

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The 9th U.S. Circuit Court of Appeals, the federal appellate court with a liberal reputation that stretches from sea to shining sea, took a markedly conservative path today in the closely- followed Proposition 8 case. Instead of resolving a thorny "standing" issue itself, and thus launching the appeal on its way to the United States Supreme Court, a three-judge panel instead first asked the Supreme Court of California for guidance on whether the private litigants who appealed the August 2010 ruling striking down the same-sex marriage ban had the legal right to do so.

The 9th Circuit just acted, to be sure, but not even the most conservative legal scholar can dare call this an instance of "judicial activism." Instead, the tactical punt from one San Francisco court to another is consistent with a centuries-old judicial concept: never decide what you don't really have to decide, especially when you have a plausible excuse for not deciding it. Here, the 9th Circuit blamed the not-completely-unexpected detour on the lack of "controlling state precedent" on the question of what to do with an appeal where, as here, both the sitting governor (the since-departed Arnold Schwarzenegger) and the sitting attorney general (the since made-governor Jerry Brown) refused to carry it out.

By diverting the case away from the federal courts and toward the state supreme court, by asking for clarification of state law by and from the state's highest court, the 9th Circuit has almost certainly delayed a substantive ruling on the merits of the case for at least a year and likely longer. The standing issue will likely have to be briefed all over again before the state high court, and a new oral argument date will likely have to be set, and then a new vigil will begin for people all over the world who are waiting for final word from the courts on whether same-sex couples have a constitutional right to marry.  All of this will take six to nine months, at least.

And then, once the California Supreme Court decides the standing issue, the case will return to the 9th Circuit for a new evaluation. More legal briefs. More oral argument. That could easily take another 6 to 9 months or more. Any way you look at Today's development, it is now far less likely that this case will be definitively resolved by the 2012 presidential election -- and by the time it gets to the U.S. Supreme Court there may be a new justice or two sitting in. Proposition 8, I probably don't need to remind you, was approved by California voters in November 2008.

The 9th Circuit's brief order Tuesday -- which notes that the Prop 8 appeal is stayed pending further word from state court officials -- also represents the first significant setback in the case for same-sex marriage proponents (who are Proposition 8 opponents) and their high-powered legal team of David Boies and Ted Olson. The bipartisan, photogenic duo had argued last month before the federal panel that the 9th Circuit had the legal authority to reject the appeal, on both procedural and substantive grounds, and now they must make at least the procedural argument again before a new panel of judges.

For proponents of Proposition 8 (who oppose same-sex marriage), the 9th Circuit action buys a little time and sure beats the likely alternative. But the trial court ruling by U.S. District Judge Vaughn Walker, which vitiated the factual and legal underpinnings of Proposition 8, still stands. And so do stringent "standing" rules. If the California Supreme Court agrees with Judge Walker -- that there can be no appeal without the formal support of California's executive branch and especially its chief lawyer-- Proposition 8 will be in even worse legal shape than it's been in for the past 6 months. And that's saying something.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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