Kristin Perry v. Arnold Schwarzenegger - Order Certifying a Question to the Supreme Court of California

ORDER CERTIFYING A QUESTION TO THE SUPREME COURT OF CALIFORNIA

Before this panel of the United States Court of Appeals for the Ninth Circuit is an appeal concerning the constitutionality under the United States Constitution of Article I, § 7.5 of the California Constitution (“Proposition 8”). 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 , 117 S.Ct. 1055 , 137 L.Ed.2d 170 (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.

I. Question Certified

Pursuant to Rule 8.548 of the…

concurring.

Today we file two orders in the appeals regarding the constitutionality of California’s Proposition 8, which provides, “Only marriage between a man and a woman is valid or recognized in California.” Put differently, the proposition prohibits same-sex marriage. Marriage between individuals of the same sex is a matter that is highly controversial in this country and in which the American people have a substantial interest. Accordingly, these appeals present a question under the Fourteenth Amendment of the United States Constitution that is of importance to the entire public. Oral argument before this court was viewed on television and the Internet by more people than have ever watched an appellate court proceeding in the history of the Nation, 1 and by innumerable law students across the country. 2

Today’s two orders involve a procedural question known as “standing.” The public may wonder why that issue is of such great importance, and what the significance of our standing decisions is. For that reason, while I agree entirely with our two dispositions, both of which are filed in the names of all three of us who are considering the appeals and both of which represent…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KRISTIN M. PERRY; SANDRA B. 

STIER; PAUL T. KATAMI; JEFFREY J.

ZARRILLO,

Plaintiffs-Appellees,

CITY AND COUNTY OF SAN

FRANCISCO,

Plaintiff-Intervenor-Appellee, v. ARNOLD SCHWARZENEGGER, in his official capacity as Governor of California; EDMUND G. BROWN, JR., in his official capacity as Attorney General of California; MARK B. HORTON, in his official capacity as Director of the California  Department of Public Health & State Registrar of Vital Statistics; LINETTE SCOTT, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; PATRICK O’CONNELL, in his official capacity as Clerk-Recorder for the County of Alameda; DEAN C. LOGAN, in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles, Defendants, 

549 550 PERRY v. SCHWARZENEGGER

and  No. 10-16696 DENNIS HOLLINGSWORTH; GAIL J. D.C. No. KNIGHT; MARTIN F. GUTIERREZ; 3:09-cv-02292-

HAK-SHING WILLIAM TAM; MARK VRW

A. JANSSON; …