The Prop 8 saga continues. Yesterday, the 9th Circuit sent the Prop 8 (aka Perry v. Schwarzenegger) case back to the California Supreme Court to answer the question of whether the backers of Prop 8 have "standing" to defend its constitutionality given that the Attorney General has refused to defend the measure (PDF).
The 9th Circuit has framed the "standing" issue as a matter of state law and, so this question falls under the purview of the California Supreme Court, which is the highest authority in the land on California state law. (Isn't Federalism fun?) I have discussed the standing issue here before, but basically if the Prop 8 backers are found not to have standing, the federal appeal would be dismissed and the constitutionality of Prop 8 would not be decided on the merits.
I'm not an expert in California law, and the precedent on this exact standing issue is slim to nil anyway, but the tone of the brief seemed to set up an argument that the Prop 8 backers do have standing. Beginning on page 10, the Court discusses how in California "all political power is inherent in the people" and how the initiative process "is one of the most precious rights of our democratic process." Further, as a "fundamental right," no political figure, such as a governor or attorney general, has veto power over an initiative. Thus, the question raised is whether such a figure can effectively "veto" an initiative by refusing to defend it. I think framing the question in that way basically gives us the answer, at least in the 9th Circuit's opinion.
The 9th Circuit seems to want to hold that the Prop 8 backers do have standing, but they also seem unwilling to usurp the authority of the California Supreme Court in making that determination.
Predictions aside, I will turn to my hopes for how this case will turn out.
I want the Prop 8 backers to be found to have standing to defend their discriminatory measure. If the California Supreme Court were to find that they have no standing, we would be forced to endure endless rounds of THEY TOOK AWAY OUR RIGHT TO VOTE bleating from the anti-gay set. Not only that, as much as I loathe Prop 8 and much of the bigoted, fear-mongering motivations behind it, people did vote for it and, accordingly, it should see its day in court. Where it can then be smacked the fuck down. On its unconstitutional merits.