December 6, 2010

Is Prop. 8 coming back to the California Supreme Court?

During today’s televised Ninth Circuit hearing of the appeal of the district court decision invalidating Prop. 8, the anti-same-sex-marriage initiative, one judge suggested asking the California Supreme Court for help before the federal appeals panel issues its opinion.

A threshold issue is whether those who appealed the district court decision have standing to do so in light of Governor Schwarzenegger’s and Attorney General Brown’s refusal to challenge the decision. Ninth Circuit Judge Stephen Reinhardt suggested asking the Supreme Court under rule 8.548 of the California Rules of Court to answer a question about standing under California law. (See press reports here and here.)

As we’ve mentioned, the Supreme Court frequently, but not always, accedes to Ninth Circuit requests for answers to questions of California law. In a related matter, three months ago, the Supreme Court summarily denied a petition (filed by the Prop. 8 proponents) that sought to compel Schwarzenegger or Brown to defend Prop. 8 before the Ninth Circuit.

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