DIG v. Standing? Prop 8 Outcome Would Be the Same

In November 2011, the California Supreme Court decided that ProtectMarriage, the conservative coalition that sponsored Proposition 8, had standing to defend the ballot initiative in the federal appellate process.

The answer wasn’t obvious to the Ninth Circuit Court of Appeals — which had certified the standing question to the state court — but Chief Justice Tani Cantil-Sakauye and the gang concluded that individual citizens have the right to defend ballot initiatives when public officials refuse to do so.

Maybe SCOTUS thinks the Supreme Court of California got it wrong. Maybe the Justices are just using standing as an excuse to avoid the greater issue of marriage equality. The only thing that is certain is that standing isn’t certain in the Hollingsworth v. Perry.

What will that mean for Californians? There are a few options.

When the Perry plaintiffs challenged Prop 8 in a San Francisco federal court in 2009, California officials declined to defend the suit. That could have meant a default judgment in the plaintiffs' favor, but U.S. District Judge Vaughn Walker allowed citizens who had sponsored the law to intervene as defendants, Thomson Reuters News & Insight explains.

Judge Walker ruled against the Prop 8 defendants, who proceeded to move on to the Ninth Circuit. In 2011, the Ninth Circuit upheld Judge Vaughn's ruling after determining that the Prop 8 proponents had standing to defend the law on appeal.

The Supreme Court doesn't have to decide the merits of the Prop 8 petition; it could find that the petitioners lack standing or it could dismiss the petition as improvidently granted, (known as a DIG). If the petitioners lack standing, then they didn't have standing on appeal before the Ninth Circuit either, Slate reports. That means that we would go all the way back to Judge Walker's decision striking down Prop 8. On the other hand, a DIG would mean that the Ninth Circuit's decision holds.

Barring a merits-based decision, Prop 8 is dead.Whether the Court chooses to DIG the petition or kick it for lack of standing, gay and lesbian couples will be allowed to marry in the California.

Related Resources:

• Prop 8, DOMA, and the Week Standing Became Sexy (FindLaw's Supreme Court Blog)
• At First Of Gay-Marriage Cases, Skepticism About Whether Court Should Weigh In (NPR)
• Issues and Outcomes: Hollingsworth v. Perry (FindLaw's Supreme Court Blog)