By Andrew Kim | 61 Am. U. L. Rev. 1867 (2012)

February 7, 2012 was a triumphant day for marriage equality activists. Relying upon the precedent set forth in Romer v. Evans, the U.S. Court of Appeals for the Ninth Circuit invalidated a California initiative restricting marriage to opposite-sex couples in Perry v. Brown (Perry VIII). Declaring that the initiative, Proposition 8, deprived same-sex couples of a “societal status that affords dignity to [same-sex] relationships” by barring recognition of those relationships as “marriage,” the court concluded that “the People of California violated the Equal Protection Clause” by passing the initiative. To do so, the court first determined whether its jurisdiction was properly invoked in the appeal; its analysis centered on the question of standing. The court concluded that the proponents had standing, based largely on a theory that initiative proponents were upholding the integrity of the initiative process.

Whatever the merits of the equal protection claim of Perry VIII may be, the Ninth Circuit erred by upholding the district court’s invalidation of the initiative on substantive grounds. This Note argues that the federal appellate court lacked jurisdiction because the appellants, proponents of Proposition 8, lacked standing. In doing so, it argues that the federal appellate court erred in relying upon the California Supreme Court’s answer to the certified question of jurisdiction in Perry v. Brown (Perry VII). The state court’s decision essentially opined that the proposition’s proponents had Article III standing by virtue of state constitutional law conferring upon initiative sponsors a right to defend their own initiatives should the state executive abandon that charge.

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