Today, at the request of the 9th Circuit, the California Supreme Court agreed to address the question whether there is anything in California law that would give the official proponents of Prop 8 standing in the federal case challenging it, Perry v. Schwarzenegger. The California court announced a briefing and oral argument schedule that will take us out until at least September, and probably beyond, while we await some word.
One issue is whether the Prop 8 proponents can show they have suffered some “personal injury” — one that is particular to them — sufficient to let them sue in federal court under Article III. That injury might arise because (1) Judge Vaughn Walker held Prop 8 unconstitutional, and/or because (2) they face imminent injury if same-sex couples start to wed when Walker’s ruling is enforced. I am not sure what California law could tell us about the answers to either of those questions that we can’t know independently, but I suppose that’s why we have briefing.
Another possible basis for standing, hinted at in the 9th Circuit’s certified question to the California court, is that state law gives proponents standing to defend the law when state officials refuse to do so, regardless of any personal injury they may have suffered. Does California law put them in the shoes of state officials?
As a constitutional matter, the Ninth Circuit doesn’t have to follow whatever advice the California Supreme Court gives it. Standing is an independent federal matter. Prop 8 proponents may have standing under federal law even if the the state court holds that state law doesn’t grant it to them; conversely, they may have no standing even if state law gives them some special status or “injury” to claim. But if the 9th Circuit went to the trouble of certifying the question, and will now wait at least six months for an answer, it seems likely the state court’s decision will have a strong influence on the result.
Whatever the outcome in the state court and the 9th Circuit on the standing issue, the final resolution of the Prop 8 case has likely been delayed well into 2012 and beyond. That has one immediate consequence. It makes any effort to repeal Prop 8 very unlikely in November 2012. Donors, already hesitant to fund a repeal drive while Perry moves forward, will be even less likely to do so while there is so much legal flux and no resolution in time to put a ballot effort together. That means that if Prop 8 is to be eradicated before at least November 2014 it must be by judicial decision.