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.
- Theodore Olson’s Road to Same-Sex Marriage Advocacy
- Perry v. Schwarzenegger Complaint
- Proposition 8 – The Long Road to the Supreme Court