In the first per curiam opinion, the 9th Circuit found that that Imperial County, its Board of Supervisors and a Deputy Clerk all lacked standing to appeal the district court's order finding Proposition 8 unconstitutional. In the second per curiam opinion, the 9th Circuit certified to the California Supreme Court the question of whether under California law "official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so."
Judge Reinhardt's concurrence attempted to explain why standing was a problem in the case, and expressed his frustration with the posture of the case. It said in part:
There can be little doubt that when the Plaintiffs filed this action their purpose was to establish that there was a constitutional right to gay marriage, and to do so by obtaining a decision of the Supreme Court to that effect. Yet ... the complaint they filed and the injunction they obtained determines only that Proposition 8 may not be enforced in two of California’s fifty-eight counties.... [I]t is clear that ... Plaintiffs could have obtained a statewide injunction had they filed an action against a broader set of defendants.... Why preeminent counsel and the major law firms of which they are a part failed to do that is a matter on which I will not speculate.
Next, the problem of standing would have been eliminated had the Governor or the Attorney General defended the initiative, as is ordinarily their obligation. Because they believed Proposition 8 to be unconstitutional, they did not do so here. Whether their decision not to defend the initiative was proper is a matter of some debate, although I sympathize with their view that in extraordinary circumstances they possess that right....
Imperial County, one of the counties that voted in favor of Proposition 8, sought to intervene, but for some unknown reason attempted to do so through a deputy clerk who asserted her own rights instead of through the Clerk.... Again, this was a most puzzling legal decision. While we have not ruled as to whether the Clerk would have had standing, we have held that a deputy clerk does not. There are forty-two counties that voted in favor of Proposition 8. Surely [proponents]... could have found a Clerk who would have presented the issue whether a Clerk rather than a deputy has standing.Finally Judge Reinhardt filed a Memorandum explaining his earlier refusal to recuse himself. (See prior posting.) Reinhardt's wife is head of the Southern California chapter of the ACLU and in that role has been an outspoken opponent of Prop 8. Also the ACLU joined in two amicus briefs filed at the district court level in the case. Reinhardt said in part:
Proponents' contention that I should recuse myself due to my wife's opinions is based upon an outmoded conception of the relationship between spouses.... [H]er views regarding issues of public significance are her own, and cannot be imputed to me, no matter how prominently she expresses them....The San Francisco Chronicle reports on the decisions.
