Ninth Circuit Now Free to Decide the Merits of the Constitutional Challenge to Prop. 8

The California Supreme Court has just decided that the official proponents of an enacted initiative — the group that got it onto the ballot — may, under California law, assert the state’s interest in defending the initiative when state officials refuse to do so. This means, given the Ninth Circuit earlier analysis of the matter, that the proponents of Prop. 8 have the legally required “standing” to appeal the trial court’s decision holding Prop. 8 unconstitutional. And that in turn means that the Ninth Circuit (and likely eventually the Supreme Court) can consider whether Prop. 8 is indeed constitutional.

UPDATE: Some commenters asked why state law should be relevant to the federal law question of whether someone has standing to appeal a federal district court decision in federal court. Here’s one way of thinking about this, which I think is consistent with the California Supreme Court’s decision:

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.

This case is just an application of that principle, though a less familiar one: State law isn’t limited to saying that the Governor gets to represent the state in federal court or that the Attorney General gets to represent the state in federal court. Rather, state law could also say that someone else gets to represent the state (which, after all, is not just the Executive Branch of the state government, but an entity in which the primary sovereign is the people). In particular, state law could say that the proponents of an initiative are the representatives of the state in cases where the executive branch officials decline to defend the initiative. And that state-law decision about who speaks for the state will be applied by federal courts, just as the state-law Governor-vs.-the-Attorney-General decision will be applied by federal courts.