Ninth Circuit Sends Proposition 8 Lawsuit To California Supreme Court

As I speculated when they heard oral argument in this case last month, the Ninth Circuit Court of Appeals has sent the case challenging the constitutionality of Proposition 8 to the California Supreme Court for a hearing on a preliminary issue that could decide whether they ever rule on the merits:

The federal appeals court reviewing California’s ban on same-sex marriage asked the state Supreme Court today to answer a legal question that may determine the outcome of the case – whether a ballot measure’s sponsors can defend it in court when state officials refuse to do so.

However, the Ninth U.S. Circuit Court of Appeals in San Francisco also made it clear how it believes the question should be answered – saying California would be “ill-served” if the sponsors of the 2008 initiative that banned same-sex marriage were barred from making their case.

The appeals court heard arguments Dec. 6 on the constitutionality of Proposition 8, which defined marriage as the union of a man and a woman.

But the court won’t be able to decide that issue unless it first concludes that Prop. 8’s sponsor, a conservative religious coalition called Protect Marriage, has standing – the right to represent the interests of the state and its voters.

Former Gov. Arnold Schwarzenegger and ex-Attorney General Jerry Brown, the defendants in the suit, did not argue to uphold Prop. 8 and declined to appeal a ruling by Chief U.S. District Judge Vaughn Walker in San Francisco declaring the measure unconstitutional

If Protect Marriage has no right to appeal, the federal court could uphold Walker’s decision and reinstate same-sex marriage in California – briefly legalized by a state Supreme Court ruling in May 2008 – without ruling on Prop. 8’s validity.

When it’s before the California Supreme Court, the case will be there on a very narrow issue:

I. Question Certified

Pursuant to Rule 8.548 of the California Rules of Court, we request that the Court answer the following question:

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

We understand that the Court may reformulate our question, and we agree toaccept and follow the Court’s decision. Cal. R. Ct. 8.548(b)(2), (f)(5).

I won’t pretend to know enough about California law on this issue to hazard a guess as to how the California Court might rule, but it would seem that the rather strong hint from the 9th Circuit, that the California Justices are likely to state that standing should be permitted in this situation.

At the very least, this means a delay of several months or more before a final ruling on the merits in this case.

Here’s a copy of the Court’s Order:

Perry v Schwarzenegger – Order Certifying a Question to the Supreme Court of California

FILED UNDER: Law and the Courts, , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Is it really so radical to hope that someday, judges should look past arcane rules of procedure and simply make the best utilitarian decision? Judges, especially federal judges, have more unused power than any other group of individuals in this country.

    However, such a policy opens the door to abuse. Perhaps I’m naive in thinking it’s a power that wouldn’t be abused.