10 responses

  1. Hyhybt
    December 7, 2012

    Why, though, would they even accept the appeal only to turn it down on standing, when the district and appeals court rulings went the same way?

    And wasn’t the standing issue already passed through the SC when the case was at the appeals court level? It’s been a long time…

  2. Stefan
    December 8, 2012

    Yes but they could rule the 9th Circuit ruled incorrectly on the standing issue. In fact, I’d say that’s what will likely happen. Regardless for us Walker’s ruling would stand and same-sex marriage would resume in California.

  3. Robert
    December 8, 2012

    Stefan, I believe they would be hard pressed to find NO standing in the prop 8 case, as the California Supreme Court made a decision on the standing in Prop 8 case. It was a statement by the California Supreme Court that allowed the 9th Circut to conclude that the anti crowd had standing. I’m unsure that the US Supreme Court could over rule a State Supreme Court as to who has standing in a case based on California Law.

  4. Marek
    December 10, 2012

    Timothy, great overview, thanks. One point – you write:

    “Because the Governor and the California Attorney General (currently Governor) Jerry Brown offered no argument in favor of discrimination, supporters of the proposition were granted standing to defend the law.”

    Well, you should have written “granted right to provide arguments”. Formally speaking they were not granted standing. The suing party (Perry et.al.) was clearly aggravated by prop8 so the trial would proceed no matter what, there was no question of standing. The “proponents” (the bad guys) were granted an “intervenor” status, not “standing” – they could argue “supplementary” arguments in a trial about which there was no question that it would proceed.

    Standing issue popped up only on the appeal, because it was brought up by “proponents” – that’s where the question of their (article 3) interest starts to be important. As you wrote, if Supremes find that “proponents” had no standing it would wipe out the appeal, but Walker’s decision would be still valid and effective – it’s a tad confusing why if your first sentence about the district-level trial says they were granted “standing”…

  5. Robert
    December 10, 2012


    Can you explain how the Supreme’s could come to the conclussion that they had no standing when the California Supreme COurt issued a statement that they did, indeed have standing? I’m a bit confused how the Supreme’s could tell California’s highest court that they cannot decide, definitively, who has standing in a case involving California Law?

  6. Timothy Kincaid
    December 10, 2012


    Thank you for the additional information and correction.


    Because the case is a federal court case, the US Supreme Court makes rulings as to federal law and who has standing in federal court. The Ninth Circuit requested the opinion of the state Supreme Court, but was not bound to follow that decision.

    Remember this wasn’t about California Law. It was about whether the 14th Amendment of the US Constitution had been violated.

  7. Robert
    December 10, 2012

    I understand that part, Timothy. But thanks for the response. What I am talking about is that the 9th Circut, before hearing the appeal, inquired of the California Supreme Court if they held the pettitioners to have standing to appeal the case. The California Supreme Court said yes, and since the case went forward because of the Supreme Court of California’s decision and it’s interpretation of who could defend the law in just these circumstances. I was under the impression that the delay in the case at the time was about just this issue and it was decided, by California, that these pettioners had the right to defend and appeal the case. Part of the case is about the decision to allow a vote on rights granted by the Supreme Court of California, and their subsequent allowance to the people to take away that vote AFTER it having been found a Constitutional right. This case wouldn’t even be a case if the California Supreme COurt had said the pettioners lacked standing. Isn’t that decision the reason the appelate court took the case? I’ve been following this closely, but I might have gotten issues mixed.

    From Prop 8 Trial Tracker website:

    In arguments before the Ninth Circuit Court of Appeals, the plaintiffs in the Prop 8 case argued that the proponents of Prop 8 do not have standing under federal law to pursue the case–implicitly arguing that the circuit court and indeed the Supreme Court lack jurisdiction in the case. The Ninth Circuit asked the California Supreme Court to issue an opinion on whether or not the proponents had standing under state law to defend Proposition 8 (which the state court said they did), and then used this opinion to grant the proponents federal standing and declare Prop 8 unconstitutional.

  8. Robert
    December 10, 2012

    If they had standing under State Law to defend the case, it makes no legal sense that the ones allowed to defend a law by the Supreme COurt of that State would lack Federal Standing. Once granted standing to defend, at loss they should be granted standing to appeal.

    But maybe I just am arguing the exact argument the Court is looking for/at.

  9. Robert
    December 10, 2012

    Also, wouldn’t a decision saying they had a lack of standing be interpreted also as a decision that a State Supreme Court has no say on who is allowed to defend the laws in the State and in courts? If one were to argue that they don’t have standing one would also be arguing that the Highest Court of the State has no right to decide the merits of the laws and their defense in it’s own State. THAT would be a huge decision with great implications for EVERY state.

  10. Timothy Kincaid
    December 10, 2012


    My comment turned into a commentary

    Revisiting standing

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