January 4th, 2011
It appears to me that the Ninth Circuit has found no standing – at least under federal law – and is covering its butt by allowing the state Supreme Court to weigh in:
Having considered the parties’ briefs and arguments, we are now convinced that Proponents’ claim to standing depends on Proponents’ particularized interests created by state law or their authority under state law to defend the constitutionality of the initiative, which rights it appears to us have not yet been clearly defined by the Court.
As I see it, here is the likely process by which Perry v. Schwarzenegger will proceed:
The California Supreme Court will rule on whether California state law allows the proponents to defend Proposition 8. Regardless of the decision, it will be appealed to the US Supreme Court by the losing side, arguing that the Ninth Circuit erred in relying on the state supremes.
If the SCOTUS agrees that the CA Supremes were the appropriate determinants of the issue of standing, then either the appeal is dead and marriage equality returns (assuming that CA Supremes find no standing) or the case moves on to the second question as to the merits of the ruling.
If the SCOTUS disagrees and finds that the Ninth erred in relying on the state, then the Ninth will have to rule on standing. The Ninth seems unlikely to find standing, but regardless of the decision, it will be appealed to the US Supreme Court by the losing side, arguing that the Ninth Circuit erred in finding or not finding standing.
Should the SCOTUS determine that there is no standing, then the appeal is dead and marriage equality returns. Should they find standing, then the case moves on to the second question as to the merits of the ruling.
Part 1: What’s Love Got To Do With It?
Part 2: Parents Struggle With “No Exceptions”
Part 3: A Whole New Dialect
Part 4: It Depends On How The Meaning of the Word "Change" Changes
Part 5: A Candid Explanation For "Change"
And don‘t miss our companion report, How To Write An Anti-Gay Tract In Fifteen Easy Steps.