So where does this leave us? A strong indication from the Supreme Court that initiative proponents whose efforts result in the enactment of laws or constitutional amendments generally do not have standing to participate as parties in subsequent litigation concerning their constitutionality, and are even less likely to be found to have standing to appeal an adverse ruling on constitutionality if the state, itself, decides not to appeal. Although the Supreme Court refrained from actually ruling on the question in the Arizona case, it certainly signaled a disposition against finding standing in such a situation.

Whether the 9th Circuit will construe things that way when it is called to rule on the Proponents' appeal of Judge Walker's decision is uncertain, as is the question whether the Supreme Court would extend its reasoning in the Arizona English case to cover this situation. But it is certainly a plausible argument that a decision by the governor and attorney general may mean that the case stops here.

On the one hand, that would be fortunate for those who want to marry in California. On the other hand, it means that Judge Walker's decision remains merely a trial court ruling and order, with no precedential authority beyond the state of California. For those who think that Walker's very persuasive decision can survive appellate review, this may seem like a lost opportunity to achieve a regional (9th Circuit) or nationwide precedent that could then be used to attack similar amendments in more than 30 states.