Alex Blaze

Standing in the Prop 8 trial

Filed By Alex Blaze | August 16, 2010 12:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: bisexual, California, erwin chemerinsky, gay marriage, lesbian, LGBT, marriage, marriage equality, Prop. 8, same-sex marriage, standing, transgender

A year ago it seemed like everyone was assuming that the Prop 8 federal case would end up at the Supreme Court and chemerinsky.jpgtrying to predict how they would decide, but I'm reading more law professors now questioning whether Prop 8 proponents have standing at all:

"How can someone who is not covered by an injunction seek a stay for the injunction?" said Erwin Chemerinsky, the founding dean of the law school at the University of California, Irvine, who applauded Judge Walker's decision. "It's just such an unusual situation to be challenging the law and not have the state defending it."

The proponents of Proposition 8 -- including the organization known as, which backed the ballot measure -- do have status as defendant-interveners in the case. And in an appeal to the Ninth Circuit filed on Thursday, lawyers for the defendant-interveners said they had legal standing because of "their own particularized interest in defending an initiative they have successfully sponsored."

"California courts have repeatedly allowed proponents to intervene to defend initiatives they have sponsored," the lawyers wrote.

Walker's decision was, basically, that the state of California didn't have the right to put same-sex marriage up for a vote, making the the conflict between the plaintiffs and the state, heard by the federal government. There is something unseemly about allowing non-governmental organizations to fight for expanded state power that the state itself is not even seeking.

Chemerinsky continues about how it's actually the conservatives on the Court who should be most against granting standing to Prop 8 supporters:

That said, the conservatives on the current Supreme Court -- considered to be in the majority -- "have always been the most restrictive about standing," Mr. Chemerinsky said.

"And that then makes it hard for these conservative justices, however much they disagree with Judge Walker, to find standing," he said.

He added, "The irony here is that a doctrine that the conservatives have developed over decades restricting standing in federal cases could now be used to end the debate over Prop 8."

Judge Walker himself addressed the issue of standing in his opinion on Thursday when he denied a request from the Proposition 8 proponents for a stay of his initial decision, issued on Aug. 4, that found the ban unconstitutional. While saying that the proponents had "organized the successful campaign for Proposition 8," he countered that it was not their job to enforce it.

"They are not (and cannot be) responsible for the application or regulation of California marriage law," he wrote.

If they aren't able to appeal because of this issue, is the next step for them to sue the state of California to force them to appeal the decision? Demagogue for FMA? Who knows. But these folks aren't just going to give up and go home.

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I think we should do an open thread on "What job will the homofundies get when this whole anti-gay thing doesn't pan out any more."

I'm guessing they'll become worried about the border or immigrant babies. :)

It's interesting how many lawyers and legal scholars totally missed this issue until it was brought up by Boies and Olson. Just goes to show that a little knowledge is a dangerous thing.

But ultimately my guess is that they will find technical standing, using some minutiae, perhaps at the SCOTUS level, because they won't want a judgment by default, so to speak, on an issue that was litigated on the trial level. Appeals courts are in the business of appeals. When you're a hammer, everything looks like a nail.