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Ninth Circuit Refers Prop 8 Standing Question to California Supreme Court

Postponing any decision of the Prop 8 case on the merits, the 3-judge Ninth Circuit panel certifies a question to the California Supreme Court asking whether the proponents of Prop 8 have standing under state law to defend the ballot measure in court.

In its order, the Ninth Circuit writes, “Because we cannot consider this important constitutional question unless the appellants before us have standing to raise it, and in light of Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (“Arizonans”), it is critical that we be advised of the rights under California law of the official proponents of an initiative measure to defend the constitutionality of that measure upon its adoption by the People when the state officers charged with the laws’ enforcement, including the Attorney General, refuse to provide such a defense or appeal a judgment declaring the measure unconstitutional. As we are aware of no controlling state precedent on this precise question, we respectfully ask the Supreme Court of California to exercise its discretion to accept and decide the certified question below.”

The Prop 8 case is put on hold in the Ninth Circuit until the California court issues an advisory opinion on the state law regarding the standing question.  There is no specific timeline under which the state court must consider the question.

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