I heard a legal expert on TV say that the 9th Circuit Court of Appeals might refuse to hear the appeal of the Proposition 8 ruling on the grounds that the people who filed the appeal don’t have standing. The state government clearly has standing, but both the governor and the attorney general have declined to file an appeal.
I know that the lower court ruling would stand if the appeals court refuses to hear the case, but how widespread would the effect of the ruling be? Would it only have an effect in the lower court’s jurisdiction? In the jurisdiction of the 9th Circuit Court? In California? The whole country?
I don’t think this is particularly likely – the main appealing group are already parties to the case. But if the appeal is denied due to a lack of standing or a similar procedural issue, then the Ninth Circuit would not rule on the merits of the case. As such, there’d be no effect on the rest of the states in the Circuit. It’s only if the Circuit Court reaches the merits and upholds the decision that it would apply throughout the Circuit.
Same-sex marriage would remain legal in California, but there wouldn’t be any effect on other states (even those in the 9th Ciruit). District Court opinions don’t create legal precedent so no other District Court in the country would be bound to follow the ruling.
Correction to earlier answer – I’ve just looked at the standing stuff more carefully and I was wrong about the intervenors – their status as parties in the District Court case doesn’t automatically give them standing to appeal, and there are real questions about whether their appeal will be heard.
The rest of my answer stands – if the appeal isn’t heard, then the decision will apply to California and not elsewhere. (Until the next suit.)
If their appeal in California is refused on standing can they appeal to the SCOTUS or do they have to go through the appeals court first before the SCOTUS can even think of looking at it?
I believe they can petition SCOTUS in appeal from the denial of right to appeal at the Circuit level. SCOTUS, of course, has almost total discretion as to whether to hear such a case. (Their caseload of original jurisdiction and appeal-as-of-right cases is less than 1% of their total caseload, as I understand; the others are all discretionary. And I will hazard a guess that the one thing all nine justices are in agreement on is that Perry v Schwarzenegger is not the case they want to tackle the gay marriage hot potato on.)
Agreed. Although I’m not as sanguine as you that they wouldn’t want to take Perry, the guys that would want it (because they want to strike it down) are also the guys who don’t like citizen standing. So if the Ninth denies the appeal, I would expect the Supreme Court not to overturn that denial.
Assuming there’s no appeal, this chain would be correct as well, right?
No appeal so Perry stands and Proposition 8 is struck down, gay marriage legal in California.
Anti-gay marriage groups put another Prop 8 on the ballot and it passes.
It is taken to court again and whatever judge hears it is not at all bound by Perry if they don’t want to be and a different conclusion is reached. Gay marriage again illegal in California.
With the different district court rulings the 9th Circuit would have to deal with it and then the Supreme Court would probably get involved.
Not asking about the likelihood of that happening, just asking if I’m correct that it could happen.
Anti-gay marriage groups attempt to put another Prop 8 on the ballot. It is refused access to the ballot by the California Attorney General, as being directly a violation of the US Constitution (per the Court ruling). And a Prop 8 (to amend the California Constitution) can not overrule the US Constitution. So it ends here.
(Also, the latest polls seem to show that Prop 8 would not pass in 2012 (the first year it could be on the ballot, I think.)
IANAL, but I agree with T-Bonham. As a parallel, imagine what would be the case if Birthers circulated a petition in California for the recall of Obama because he’s ineligible for office (according to them, of course), or to ban the Mormon church from California. These would not be permitted on the ballot, right?
The state has no role in federal matters, so the birther stupidity would be quickly tossed.
The Mormon thing would also be tossed - the right to freedom of religion is in the federal constitution (and the state one there?) and IIRC banning a religion has been equated to “establishing a state religion” so is blatantly against the constitution.
The usual test. as I understand it (IANAL) is that once a law is ruled unconstitutional, then unless the replacement is crafted to overcome the specific objections of the court ruling, then it is pretty trivial to get it overturned almost immediately; so logically, an already unconstitutional law/amendment would never make the ballot. It’s a waste of money.