Today, November 17, the California Supreme Court handed down its decision that the proponents of Proposition 8 had the right to appeal the August 2010 decision of Chief Judge Vaughn Walker, U.S. District Court, that the law was unconstitutional.
This ruling answers the question asked of the California Supreme Court by the 9th U.S. Circuit Court of Appeals, when the proponents of Prop 8 submitted an appeal to the 9th Circuit following the refusal of the then Governor of California and the State Attorney General to appeal the decision of the District Court.
In its ruling the California Supreme Court said, “The inability of the official proponents of an initiative measure to appeal a trial court judgment invalidating the measure, when the public officials who ordinarily would file such an appeal decline to do so, would significantly undermine the initiative power.” The court was unanimous in its decision. The court said that it made this ruling solely on the issue of process, and not on the merits or issues of Proposition 8 itself.
Both sides of the action before the 9th Circuit have said that they fully expect the appeals court to accept and abide by the ruling of the California Supreme Court as to the standing of those bringing the appeal.
Though some LGBT advocacy groups have expressed disappointment with the California ruling, the lawyers who brought the original suit by two same-sex couples and are directly involved in the case before the 9th Circuit have expressed confidence. In press reports, Theodore Olson, former U.S. Solicitor General during the Bush administration, has said, “This frees up the 9th Circuit to go ahead and decide the constitutional issues on the merits. We’re anxious to get to a decision on the merits that Proposition 8 is unconstitutional.”
The case has already been briefed and argued before the 9th Circuit; so, on that basis, the court could move to deliberation and decision. However, the proponents of Prop 8 have raised the issue of Judge Walker’s being in a long-term, same-gender relationship at the time of the trial and his ruling as grounds for overturning because of presumed bias. This argument was previously made to Chief U.S. District Judge James Wade and rejected earlier this year. His ruling has now been appealed to the 9th Circuit, as well.
The saga that is Prop 8 moves now to and through the 9th Circuit, since those who are unhappy with whatever the 9th Circuit says about the case will undoubtedly take the case to the U.S. Supreme Court.