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Proposition 8: The ‘Standing’ Debate

Proposition 8: The ‘Standing’ Debate

After Judge Vaughn Walker refused to grant a permanent stay on his decision to overturn Proposition 8 this week, a debate has emerged as to whether Proposition 8′s defenders even have the necessary legal standing to appeal for an emergency stay from the 9th Circuit Court of Appeals, a process which is underway now.

The temporary stay that Judge Walker extended last week runs out as of 5pm Wednesday, August 18. If another stay is not granted by this time, the issuing of same-sex marriages resumes in California. On this basis, the “standing” debate is, obviously, a critical one.

What is Legal Standing?

In its simplest terms, standing as a legal term centers on whether a party has the right to bring a case in court. As a general rule, a party must be able to prove definite injury in order to be classed as having standing.

What is Article III Standing?
Writing in the L.A. Times, Erwin Chemerinsk, dean of the UC Irvine School of Law, gives us a concise overview of Article III:

Article III of the U.S. Constitution restricts federal courts to deciding “cases” and “controversies.” The Supreme Court long has held that in order to meet this requirement, a person or group pursuing legal action must have standing, a status conferred only on those who have suffered a direct, concrete injury. An ideological objection to a government action, no matter how strongly felt, is insufficient for standing.

Both California’s incumbent governor Arnold Schwarzenegger, and gubernatorial candidate Attorney General Jerry Brown would have such standing in this case, but both have declined to defend Proposition 8, going on record as saying it is unconstitutional and petitioning against a stay.

In the absence of California’s Administration defending the voter enacted constitutional amendment, Proposition 8 supporters banded together to become defendant intervenors in the case.

The Issue Over Defendant Intervenors’ Standing

In Thursday’s decision to refuse a permanent stay until the appeals process is through, Judge Walker called into question whether the defendants, as intervenors, have sufficient standing for an emergency stay, saying that, while the court granted them the right to intervene, that does not automatically confer the ability to invoke the jurisdiction of the higher court.

Erwin Chemerinsk concurs with this line of legal analysis, writing:

[...] because they are not in any way enjoined or covered by the injunction, they are not the proper party to seek a stay of it. Nor do they have standing to appeal Walker’s ruling.

The Supreme Court has explicitly held that standing to appeal is required and that being an intervenor is insufficient to meet this requirement. In one case, the state of Illinois refused to appeal a federal judge’s ruling striking down a law regulating abortion, and a doctor who had intervened tried to appeal to defend the law. The Supreme Court held that the doctor lacked standing and ordered the appeal dismissed.

Of course, this is just one among many legal opinions on the issue. The Protect Marriage coalition group argues that, as initiative sponsors, they are granted sufficient status under California law to both defend and appeal in this case, saying:

“Proponents may directly assert the state’s interest in defending the constitutionality of its laws, an interest that is indisputably sufficient to confer appellate standing.”

Lawyers acting on behalf of the plaintiffs have countered this, expressing a view that:

“Ballot proposition proponents are not materially different from citizens dissatisfied with a government’s failure to enforce a generally applicable law; they lack the concrete injury particularized to themselves and not shared generally by the public necessary to invoke the jurisdiction of the federal court.”

This is a thorny issue that the 9th Circuit Court of Appeals will have to consider before the Wednesday deadline. Needless to say, with this being such a highly scrutinized case, the pressure is on.

What Happens Next in the Proposition 8 Case?
Three judges from the 9th Circuit Court of Appeals will now consider the motion for an emergency stay. A deadline of Monday morning has been given for the involved parties to respond.

The pro-Proposition 8 side have accused Judge Walker’s court of ignoring “[...] virtually everything — judicial authority, the works of eminent scholars past and present in all relevant academic fields, extensive documentary and historical evidence, and even common sense — opposed to its conclusions,” in their 95-page appeal.

Theodore Boustrous Jr., part of the team representing gay couples in this legal battle, has argued that the defendant intervenors failed to establish the two factors critical to qualifying for a stay:

“The proponents’ motion, while exceptionally lengthy, does not come close to showing they have a strong chance of winning on appeal, which is what they must demonstrate to get a stay… And they completely fail to show that they or anyone else will be irreparably harmed – or harmed at all – by allowing people to get married while the appellate process proceeds.”

In filling to oppose the emergency stay, the plaintiffs’ lawyers again raise the issue of “significant doubt” over the legal standing of the pro Proposition 8 team, while also offering that a stay will cause “irreparable harm” to the plaintiffs. Read the motion against a stay here.

Meanwhile, A.G. Jerry Brown has filed with the 9th Circuit Court of Appeals asking that same-sex marriages be allowed to recommence on Wednesday, August 18, when Judge Walker’s temporary stay ends:

“While there is still the potential for limited administrative burdens should future marriages of same-sex marriages be later declared invalid, these potential burdens are outweighed by the district court’s conclusion, based on the overwhelming evidence, that Proposition 8 is unconstitutional.”

If the 9th Circuit refuses the emergency stay, the pro Proposition 8 team have said they will appeal to the U.S. Supreme Court.

The three judges overseeing the appeal for a stay are Judges Michael Daly Hawkins, Sidney Thomas and Edward Leavy. You can read more about each of them here.

You can also read more about Judge Vaughn Walker’s decision to overturn Proposition 8 here.

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Photo used under the Creative Commons Attribution License, with thanks to angela n.

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140 comments

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4:04AM PDT on Aug 22, 2010

This Proposition 8 in CA is turning into a soap,coming to your TV soon.........

9:53AM PDT on Aug 20, 2010

I was married to a woman, had children, etc., for 22 years prior to realizing that my feelings for some members of my own sex were not "just something that everyone else has, too," told my then-wife and sought a divorce. Later I met the man that I legally married prior to the 2008 election, part of the 36,000 who did so before Prop h'8's passage. We're only married in California, because of a very cruel unconstitutional federal law that denies us the rights of survival, better tax rates, etc. DADT must also fall; many homos are as, or more manly than their hetero counterparts, molest NO ONE, have talents the military NEEDS, have been awarded hero's medals; are valuable to our armed forces.

Prop h'8 will fall; people are getting over the idea that people of the same sex can be spouses and parents as well as heteros; keep your dirty mind to yourself.

Few of the words in the Bible are the word of God, but of man. Leviticus was a government edict to people living in occupied territory, to procreate as many Hebrews there as possible. It also recognized slavery, subordinated women's rights, and forbade the consumption of now-popular foods. It's a relic.

People shouldn't have to have someone to hate. Try substituting their realities as your own, and you'll find that you no longer h'8, feel free to "tell", and are mystified by unequal treatment before ANY law, or in everyday situations.

H'8 is bad for you; love is good. Try it.

9:53AM PDT on Aug 20, 2010

I was married to a woman, had children, etc., for 22 years prior to realizing that my feelings for some members of my own sex were not "just something that everyone else has, too," told my then-wife and sought a divorce. Later I met the man that I legally married prior to the 2008 election, part of the 36,000 who did so before Prop h'8's passage. We're only married in California, because of a very cruel unconstitutional federal law that denies us the rights of survival, better tax rates, etc. DADT must also fall; many homos are as, or more manly than their hetero counterparts, molest NO ONE, have talents the military NEEDS, have been awarded hero's medals; are valuable to our armed forces.

Prop h'8 will fall; people are getting over the idea that people of the same sex can be spouses and parents as well as heteros; keep your dirty mind to yourself.

Few of the words in the Bible are the word of God, but of man. Leviticus was a government edict to people living in occupied territory, to procreate as many Hebrews there as possible. It also recognized slavery, subordinated women's rights, and forbade the consumption of now-popular foods. It's a relic.

People shouldn't have to have someone to hate. Try substituting their realities as your own, and you'll find that you no longer h'8, feel free to "tell", and are mystified by unequal treatment before ANY law, or in everyday situations.

H'8 is bad for you; love is good. Try it.

9:12AM PDT on Aug 20, 2010

I was married to a woman, had children, etc., for 22 years prior to realizing that my feelings for some members of my own sex were not "just something that everyone else has, too," told my then-wife and sought a divorce. Later I met the man that I legally married prior to the 2008 election, part of the 36,000 who did so before Prop h'8's passage. We're only married in California, because of a very cruel unconstitutional federal law that denies us the rights of survival, better tax rates, etc. DADT must also fall; many homos are as, or more manly than their hetero counterparts, molest NO ONE, have talents the military NEEDS, have been awarded hero's medals; are valuable to our armed forces.

Prop h'8 will fall; people are getting over the idea that people of the same sex can be spouses and parents as well as heteros; keep your dirty mind to yourself.

Few of the words in the Bible are the word of God, but of man. Leviticus was a government edict to people living in occupied territory, to procreate as many Hebrews there as possible. It also recognized slavery, subordinated women's rights, and forbade the consumption of now-popular foods. It's a relic.

People shouldn't have to have someone to hate. Try substituting their realities as your own, and you'll find that you no longer h'8, feel free to "tell", and are mystified by unequal treatment before ANY law, or in everyday situations.

H'8 is bad for you; love is good. Try it.

12:56PM PDT on Aug 19, 2010

A friend of mine, a retired county judge, said that he always felt a little strained when he was called upon to "unite a man and a woman in the bonds of HOLY matrimony." What right did he, as a government official, have to perform a religious function?

The idea that a federal judge must rule on the federal Defense of Marriage Act before accepting a case involving the constitutionality of a state legal provision is pure and utter rubbish. A federal law has no bearing on the application of the U.S. Constitution to state laws. That federal law was not part of the case, so it was not appropriate to consider it. Neither party raised it as an issue, nor (I suspect) would it have been allowed under the rules of procedure, as it is simply not germane to the issue presented to the court.

9:21AM PDT on Aug 19, 2010

In Canada, they have gay marriage for a few years now and it is up to the Church as to if they want to marry gay couples or not, why is this not being treated this way here. If you do not agree with it then do not marry them. I am sure another Church will. Marriage is between two people that truly are in love with one another, whom are they to deny people of their happiness. Why do they care what is happening in other people's home and bedrooms? The Catholic Church does not have the right to say anything, they have so much corruption alone in their own home. Church & State are to separate the last time I knew, or is this another right that is being stripped away from us too?

5:18AM PDT on Aug 19, 2010

I was amazed to read the story from Debbie Cross. Here in Canada we've had same-sex marriage legalized for five years. And no religious group or denomination is obliged to perform such nuptials.They are protected by freedom of religion. It sounds like the gay couple in question were being vindictive.That is the sort of thing that perpetuates animosity.By the same token it must be noted that such incidents as the following continue to take place with no consequences. A fundamentalist group in Minnesota calling itself 'You Can Run But You Cannot Hide' has been stating over the airwaves that the average gay man molests about 117 people before getting caught. What slanderous crap! This is bearing false witness against an entire segment of humanity.

2:10PM PDT on Aug 18, 2010

The problem with proposition 8 as i see it, is that it tries to make same sex marriage legal when it already "IS" legal!
In fact it is legal in EVERY state in the US of A.

i live in Tampa Florida and my wife and i have been married here since 1985. There never was a problem. My gender is "male" and Hers is "Female" (they are different) but we are both of the Hetero "sex". No one seems to be upset about Our being of the same sex and married.

What the hell is the problem?

Doc Eminizer

9:19AM PDT on Aug 18, 2010

Taylor M: Go somewhere else with that crap. You are discriminating! Marriage is about two people who love each other, man and man, woman and woman, man and woman. Love is love any way you look at it. When people start trying to marry donkeys, then we have a problem.

6:11AM PDT on Aug 18, 2010

The point taken by CM S is sound: that arbitrary discrimination of a minority is not in accordance with the founding principles and Constitutional precepts of our Republic.

My argument is that the Defense of Marriage Act, a law which creates such discrimination, is what needs to be challenged, and adjudicated in Federal courts as either constitutional or un- before individual state constitutional provisions can be declared in violation of the US Constitution.

Until such time as the DoM Act is adjudicated, Federal judges must follow Federal laws. Failure to do so renders them in violation of their oaths of office and thus, themselves, "law breakers".

The recent rulings in Washington, DC, our only fully Federal entity, legalizing same-sex marriage, can set the precedent for further action to normalize the civil contract and bring forth the obligations and benefits currently ascribed only to heterosexual union.

Why then has the GLBT group not pursued this approach? Doing so will bring about less backlash from states, cost far less money to prosecute and move the argument into the proper forum, the Federal space.

Remember, the proposed US Constitutional amendment to define "only marriage between a man and a woman is valid or recognized in the United States" was defeated. The DoM Act must be challenged to create a national, uniform definition that would apply to all States and prevent nullification.

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