The California Supreme Court just released it's opinion. Written by the Chief Justice, Tani Cantil-Saukauye, the ruling was unanimous, 7-0. The ruling gives the Defendant-Intervenors (aka the Proposition 8 Advocates, aka bigots) in Perry v Brown nee Perry v Schwarzenegger, the right under California law to appeal Federal District Judge Walker's landmark decision some 14 months ago declaring Proposition 8 unconstitutional as a violation of equal protection under the 14th amendment of the US Constitution.
So what does this mean? Nothing and everything.
Nothing, because now the case goes back to the Ninth Circuit Court of Appeals, which asked for the California Supreme Court to opine on this question of standing under California law. (It only took them ten months to do so, which is downright harelike, or so i'm told, where the CSC is concerned.) The Ninth Circuit Court of Appeals still has to rule on the question of Article Three Standing. Regardless of what California law says, the Ninth Circuit has to decide whether the Defendant-Intervenors have standing under the US Constitution and Federal law.
And yet everything, because it is quite likely that the Ninth Ciruit will indeed rule that they do have Article Three Standing, using the California Supreme Court's decision as a basis for their reasoning. This means that they will then rule on the merits -- whether to uphold Judge Walker's judgement that Proposition 8 is unconstitutional, or set it aside. That decision could come fairly quickly since oral arguments on this topic have already been held -- nearly a year ago now.
Does this mean that marriage equality could be coming to the largest state in the nation any time soon? No. The chance that this will happen is infintesimal.
No matter which way the Ninth Circuit rules on the merits (assuming it does), an appeal will be forthcoming. This appeal could be to an en banc panel of the Ninth Circuit (a randomly selected set of eleven Ninth Circuit judges), or it could go directly to the Supreme Court. Regardless of where it goes, if the Ninth's decision is in favor of marriage equality a stay is almost certain to be issued.
Even if the decision is appealed directly to the Supreme Court, the Supreme Court would probably not hear the case in its current session; it would wait until it's next session, a year from now, and no decision would be issued until May or June 2013. That's because
A case must be ready for the Justices to consider by no later than the end of January in order for it to be decided in the current Term
and there would not likely be sufficient time to prepare the case even assuming the Ninth Circuit issued it's rulings quickly.
Furthermore, if the decision of the Ninth Circuit is in favorss of marriage equality, there is every reason to believe the Defendant-Intervenors will appeal not to the Supreme Court, but to an en banc panel of the Ninth Circuit. Why? Because that would delay the entire proceedings at least a year. The Prop 8 defenders have absolutely nothing to lose by pursuing this option, since marriage equality would not be in force in California while appeals are heard as discussed above.
Bottom line: This is just one of the many steps on a very long road to the Supreme Court, and there is no guarantee the Supreme Court will rule against Proposition 8 once the case gets there. California's LGBT community chose to climb this staircase instead of shooting for the moon -- a ballot initiative to overturn Proposition 8 once and for all. They will now have to continue to endure the long climb, with only the possibility of a rainbow at the top. Should the case fail, a ballot initiative before 2016 (because of the demographics of the voting population in mid-term elections) seems unlikely.
You can get more analysis of the court's decision (by real experts!) at the Courage Campaign's Prop 8 Trial Tracker website.
10:10 AM PT: Here is the text of the opinion.
10:14 AM PT: Opinion as a PDF
10:15 AM PT: Prop 8 Trial Tracker article on the ruling.
10:23 AM PT: From the ruling.
we respond to the question posed by the Ninth Circuit in the affirmative. In a postelection challenge to a voter-approved initiative measure, the official proponents of the initiative are authorized under California law to appear and assert the state‘s interest in the initiative‘s validity
and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so.
10:41 AM PT: Adam B's front page article10:46 AM PT:
Shannon Minter, Legal Director at National Center for Lesbian Rights who led the legal team to win In re Marriage Cases at the California Supreme Court in 2008, sent his reaction in over e-mail:http://www.prop8trialtracker.com/...
This is a terrible decision in terms of its impact on California law. The court has given initiative proponents unprecedented and virtually unlimited power, and the people of California will be living with the dangerous consequences of that decision for years to come. That said, the Court’s ruling means that the Ninth Circuit will almost certainly find that the proponents of Prop 8 have standing to pursue the appeal, which means that the Ninth Circuit will now decide whether to affirm or reverse Judge Walker’s decision finding that Prop 8 is unconstitutional. If the Ninth Circuit agrees with Judge Walker, the Supreme Court is very likely to take the case. In the bigger picture, this is good news for same-sex couples in California. Prop 8 is blatantly unconstitutional for many reasons—not only because it deprives same-sex couples of a basic right, but because it was enacted for the sole purpose of targeting a particular group in order to deny them equal protection of the laws.
10:53 AM PT: Article by Chris Geidner. Good read.
11:04 AM PT: Interesting. From the decision.
we need not decide whether, under California law, the official proponents also possess a particularized interest in a voter-approved initiative‘s validity
So the CSC is completely punting back to the Ninth Circuit on the issue of Article Three Standing, neither supporting nor not-supporting the question.
11:15 AM PT: Opinion as PDF directly
11:38 AM PT: Standing will be an issue a SCOTUS. No doubt about it.
One reporter asked whether AFER’s team could drop the standing issue and just ask the court to consider the case on the merits. Both Olson and Boies made it very clear that every court has to determine whether a specific case is in its jurisdiction, and that therefore the issue of standing is one that is brought up by the court itself, not the litigants. Parties can’t waive this discussion—if the court asks them to argue about standing, they must. They also predicted that the if the case ended up before the US Supreme Court, they believe that court would ask them to address the issue of standing just like the 9th Circuit did.http://www.prop8trialtracker.com/...