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| Theodore Olson |
Basically, the appeals court has asked the California Supreme Court to answer the question as to whether or not the original proponents of the Proposition have the legal standing to challenge Judge Walker's ruling that it was unconstitutional.
From Michael C. Dorf, Robert S. Stevens Professor at Cornell University Law School:
"The named defendants in the Perry case were the Governor, the Attorney General, two other state officials, and the County Clerks of Los Angeles and Alameda counties. Yet they all declined to defend Prop. 8 in the district court--leaving that task to the Proposition's sponsors, who intervened. After the district court invalidated Prop. 8, the named defendants declined to appeal. Accordingly, before the appeals court can reach the merits, it must first decide whether the sponsors have legal standing to defend Prop. 8... Even if the appeals court holds that the sponsors lack standing, the case could go forward if another putative intervenor--the deputy clerk for Imperial County--is found to have standing."
So... What happens next? If none of the parties defending Prop. 8 are found to have the legal standing to do so, what does this mean? Again, from Mr. Dorf:
"If the court simply dismisses the appeal, then presumably the district court order goes into effect, and same-sex couples can once again marry in California. But alternatively, a finding that no one has standing to defend Prop. 8 on appeal could be read to entail that no one had standing to defend it at trial--in which case the appeals court might have to vacate the entire opinion by the district court. The parties' briefs contest just this point--which could prove crucial if the court attempts to resolve the case on procedural grounds."
So at this point, it could go in any direction. Marriage equality, but only in California. No marriage equality for California. Or on to the Supreme Court in DC. If it does proceed to SCOTUS, David Boies will make the argument: "The United States Supreme Court has determined that intimate sexual conduct between same-sex couples is constitutionally protected. How can marriage rights be taken away when a person is engaged in a constitutionally protected activity? That right can not be taken away from individuals in this state. It is discrimination on the basis of sex and discrimination on the basis of sexual orientation."
UPDATE: Video added 1/4/11 at 4:45 PM
From Michael C. Dorf, Robert S. Stevens Professor at Cornell University Law School:
"The named defendants in the Perry case were the Governor, the Attorney General, two other state officials, and the County Clerks of Los Angeles and Alameda counties. Yet they all declined to defend Prop. 8 in the district court--leaving that task to the Proposition's sponsors, who intervened. After the district court invalidated Prop. 8, the named defendants declined to appeal. Accordingly, before the appeals court can reach the merits, it must first decide whether the sponsors have legal standing to defend Prop. 8... Even if the appeals court holds that the sponsors lack standing, the case could go forward if another putative intervenor--the deputy clerk for Imperial County--is found to have standing."
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| David Boies |
"If the court simply dismisses the appeal, then presumably the district court order goes into effect, and same-sex couples can once again marry in California. But alternatively, a finding that no one has standing to defend Prop. 8 on appeal could be read to entail that no one had standing to defend it at trial--in which case the appeals court might have to vacate the entire opinion by the district court. The parties' briefs contest just this point--which could prove crucial if the court attempts to resolve the case on procedural grounds."
So at this point, it could go in any direction. Marriage equality, but only in California. No marriage equality for California. Or on to the Supreme Court in DC. If it does proceed to SCOTUS, David Boies will make the argument: "The United States Supreme Court has determined that intimate sexual conduct between same-sex couples is constitutionally protected. How can marriage rights be taken away when a person is engaged in a constitutionally protected activity? That right can not be taken away from individuals in this state. It is discrimination on the basis of sex and discrimination on the basis of sexual orientation."
UPDATE: Video added 1/4/11 at 4:45 PM
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