Bench Memos

re: Ninth Circuit Panel in Prop 8 Appeal Certifies Question on Standing to California Supreme Court

Maggie Gallagher e-mails this statement from the National Organization for Marriage


NOM Reacts to 9th Circuit Ruling, Referring Standing Question to California Supreme Court

Today the 9th Circuit issued several rulings, denying standing to Imperial County’s deputy clerk, and referring the question of whether Proponents of Prop 8 (“Protect Marriage”) have standing to appeal Judge Walker’s ruling to the California Supreme Court.    

Judge Reinhardt also issued a concurrence in which he called the argument Proponents for Prop 8 had made for standing “strong.”  He also  criticized the lawyers in this case for the “inexplicable” choices that have made orderly review of Judge Walker’s decision so difficult. 

“Judge Reinhardt clearly agrees with us about two things:  First  a federal trial court judge cannot possibly have the last word about whether the U.S. Constitution requires gay marriage; and second, superlawyer Olson and Boies are working overtime in tricky ways to make sure their supposedly invincible case for gay marriage does not get reviewed by any higher court,” says Brian Brown, “We are confident Judge Walker’s ruling will not be permitted to stand without challenge, and that Olsen and Boies tactics will backfire”

Excerpt from Judge Reinhardt’s concurrence:

“Although that matter must be decided by the Supreme Court of California, Proponents advance a strong argument on this point.  Thus, in the end, there may well be standing to maintain this appeal, and the important constitutional question before us may, after all, be decided by an appellate court—ours, the Supreme Court, or both—and may apply to California as a whole, instead of by being finally decided by a trial court, or by default, in only two counties, or in none.  As a result, the technical barriers and the inexplicable manner in which the parties have conducted this litigation may in the end not preclude an orderly review by the federal courts of the critical constitutional question that is of interest to all Americans, and particularly to the millions of Californians who voted for Proposition 8 and the tens of thousands of same-sex couples who wish to marry in that state.”


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