Legal Commentary

The three -judge panel sitting on the Prop 8 case has decided to certify the standing issue to the state Supreme Court.  For those of us who were watching the oral argument, it was clear that the panel was very proud of itself for having found this further delay tactic.  I don't suppose anyone will be terribly upset by this buck-passing, though no party was particularly enthusiatic about it when Reinhardt suggested that they may bring in the state court.

True enough, Ginsburg intimated in Arizonans that underlying state law might be able to attempt to confer standing (and that case observed that there was no such law in Arizona).  But it is very hard to squeeze out of Arizonans a real opening to find standing for the proponents here based on non-existent state law in California (if state law can overcome the federal constitutional hurdle).  Certification works well, it would seem, when there is some outcome-determinative state law at issue that is unclear.  In the case that will now be before the state Supreme Court, the federal court has invited it to simply make up new law whole cloth -- with no real sense from Arizonans that it really will be outcome-determinative, whatever the state court decides.  Certification is fun for law geeks but it really seems counter-indicated here.  The best explanation for the 9th Circuit decision is not legal but political.  If the 9th Circuit can dilly-dally just long enough, we may be able to moot the Prop 8 federal case with gay marriage in California before it gets to the US Supreme Court.