Hmm... Looks like the Seahawks aren't the only people doing a lot of punting.

Oh crap, does this mean they were found to have standing?

I'm no lawyer, but I like to read.

They're refusing to rule until the state supreme court tells them whether the bigot initiative backers have standing to appeal in the first place, given the State of California's then-AG, now-governor Jerry Brown's refusal to defend the initiative-enacted law against Boies and Olson's plaintiffs.

If the state supreme court rules the bigots have insufficient standing, the appeals court's not going to bother ruling on the merits, and the bigots will have to move up the appeals food chain.

That's how it looks to me in the bleacher seats, anyway.

I'm a lawyer, and gloomy gus basically has it right.

@4 no way! Woot! I'm calling my mother right now.

Woot, gus! Also, I read last night that the hope is they can get this on the ballot for 2012, why such a long wait? I thought if they overturned 8, they could go back to granting licenses?

I swear I typed "woot" before I read your comment!!!

Oh, I never refuse woots, thank you, Canuck. Refusing woots leads to leg cramping.

Isn't w00t more 133L than Woot?

My woots, of course, come straight from the woot-master, Michael K, arbiter of all of my new words, so consider yourself officially D-listed, gus.

WiS, is that computer-speak? I'm sorry, but that wooshing you hear is it going right over my head...

Another lawyer here. What is interesting, to me, about this move by the 9th Circuit is that, if the California Supreme Court says "no standing," that will likely be dispositive of the issue. But if the California Supreme Court says, yes there is standing, such a ruling will not be binding on the question of federal court jurisdiction, which is "jealously guarded."

@6 My understanding is that there are multiple strategies to get rid of Prop. 8 moving in parallel. One is the Olson/Boies case; the repeal of the amendment by California voters is another.

Both strategies have strengths and weaknesses.

The Olson/Boies case ultimately has the potential to affect marriage law throughout the country (if the Supreme Court takes it up and rules favorably).

Even if the Supremes don't take up the case, if the 9th District rules favorably, it could affect marriage rights not just in California but in Washington, Oregon, Arizona, Idaho, Nevada, Montana, Alaska and Hawaii too.

It's also possible that this case might well end up having an impact on federal law too, especially DOMA.

The downside to repealing Prop. 8 through the courts is that it inflames the "activist judges" rhetoric. Conservatives won't see it as a legitimate decision (particularly coming from the "liberal" 9th Circuit) and it may turn off some independents too (cf. the judges in Iowa who just got thrown off the bench).

Also, if the Supreme Court takes it up, we're dealing with a very conservative group of Justices right now who could potentially shut down the use of the courts as a method of protection of our rights almost completely for a generation or more (it took the Supremes almost 20 years to undo the damage done in Bowers v. Hardwick and get rid of sodomy laws)

Repeal of Prop. 8 at the ballot box has the virtue of having the most legitimacy (what's more democratic than having a majority of the electorate vote in your favor?). It would send a much more powerful signal to conservatives that the tide has turned on gay rights than any court case could.

On the other hand, it would only affect California, period.

@9: `/0|_| |=4!1 47 13375|>34|

Goddamn commenting utility cutting off my less-than signs...there should be a less-than sign at the end of that string.

Oooh, lawyerin' time! Huzzah!

Anyway - what happened here wasn't so much that they sent the question of standing to the State Supreme Court, so much as the fact that they're asking for clarification as to, whether as a matter of state law, the defendant-intervenors (the yes-on-8 guys) are a party in interest to the law. In other words, the question sent to the California court is whether Prop 8 provides a private right of action on the part of non-governmental agents to defend the law.

BUT: This might not actually matter. The thing is that Article III standing - that is, whether a party has standing to bring suit in Article III courts (federal district/circuit courts and the Supreme Court) - is a matter governed by the federal constitution. Whether Prop 8 provides a private right of action under state law doesn't necessarily have any impact on federal constitutional standing. It could in theory, but it probably doesn't.

So, what I (in my totally non-expert opinion) think is happening? Well, the 9th Circuit is probably certifying that question to the California Supreme Court just to have it on the books when they render their final decision on the Article III standing issue. It helps remove doubt from the validity of their ruling, even if as a substantive matter what the California Supreme Court says doesn't actually impact their decision.

I could be wrong, though - and if anyone has any thoughts as to why I'm mistaken, please share.

Good analysis, Anne, and no, I don't think you're wrong. You're hired.

@ 16 - Hooray!

Is Denver any warmer than Bostonia?