The 9th Circuit Court of Appeals Prop 8 Decisive Indecision Ruling In A Nutshell

Okay so what happened today with the Ninth Circuit and what does it all mean?

Here are the two main points in a nutshell

The Ninth Circuit denied standing to Imperial County to appeal The Prop 8 because the Clerk of Imperial County which is nothing more than civil servant did not have the authority to represent the state.  So we won on that one. YEA US!

The second point is a bit strange.  The Ninth Circuit looked at the law and said, “We just don’t know.” and “certified a question” to the California Supreme Court, asking for some guidance on whether there is any state law that allows  proponents to defend their ballot measure in court when the state refuses.  Which basically means does “Yes on 8” have the right o appeal even though The State of California does not want to.

So basically we have no decision yet on the on if “Yes On 8” can appeal. and the Ninth Circuit is going to do whatever the California Supreme Court tells it to do because the California court is the final arbiter on what its state law is. And this also just  further delays any final decision. While certified questions are usually expedited, there is no telling how many weeks this adds to the process. The court could ask for briefing on the question, or they could just take their time.  So we now all hang and wait on the timeline which is up to the court.

If the Prop. 8 proponents “Yes on 8” lack standing, the challenge is over and same-sex marriage comes to California, unless the U.S. Supreme Court disagrees on standing.

If the Prop. 8 proponents have standing, however, Judge Walker’s decision on the merits will have to be reviewed at the 9th Circuit and then quite possibly at the U.S. Supreme Court.

This could actually be the 9th Circuit punting this back to the CA Supreme Court to pressure them into saying that “Yes on 8” has the right so the 9th Circuit can make a decision which will be appealed to the Supreme Court and thus the 9th Circuit would not be responsible for the final decision.

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Will Kohler

Will Kohler is a noted LGBT historian, journalist and owner of Back2Stonewall.com. A longtime gay activist, Will fought on the front lines of the AIDS epidemic with ACT-UP and continues fighting today for LGBT acceptance and full equality. Will’s work has been referenced in notable media venues as MSNBC and BBC News, The Washington Post, The Daily Beast, Hollywood Reporter, and Raw Story,

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