Standing

This is pretty interesting. In the California Proposition 8 case, Judge Walker stayed his order striking down Proposition 8 – and reinstating gay marriage in California – but only until August 18, 2010. That is the deadline by which the Defendants must file an Appeal. His Order then pointed out, as no one but Judge Walker seems to have realized prior to his pointing it out, that the Defendants who wish to appeal probably lack “Standing” to file the appeal.

For all of you non lawyers, “Standing” is a judicial concept limiting a court’s discretion to hear a case. American courts are not allowed to hear a case unless both parties are properly before the court, and Parties are not allowed to bring a case unless they have standing.

Standing means that the party has some specifiable or quantifiable interest in the outcome of the case – that the outcome will affect the party’s rights and/or interests. A simple example is that a citizen cannot sue the U.S. government regarding its “enhanced interrogation policies,” no matter how much he or she disagrees with those policies, because, unless they personally have been subjected to the torture, the outcome of any such suit will not directly affect their individual rights or interests. (Imagine how powerful our courts would be if they were allowed to hear any case they wanted, brought by anyone willing to bring it; imagine how difficult it would be for the other branches of government to function if they could be sued by anyone who disagreed with their actions).

Back to Proposition 8. The Plaintiffs in the case were four private citizens - a male and a female same sex couple - who were denied marriage licenses on the basis of Proposition 8. These individuals clearly had standing to sue, because the outcome of the case directly effected their rights and interests. The original Defendants were the California State officials tasked with managing the issuance of marriage licenses. They, of course, had standing to defend, since the rules governing the issuing of marriage licenses had direct implications for their performance of their official duties.

No problem so far, except that that the named Defendants refused to defend Proposition 8. It was only after California’s Governor and Attorney General expressly declined to defend the suit that the Court allowed an organization called Protectmarriage.com to intervene and supply a defense. They did horrible job, by all accounts, but that’s another issue.

What matters is something that, until now, no one but Judge Walker appeared to realize -the Intervenor Defendants do not have standing to appeal. The outcome of the case does not appear to have any quantifiable affect on their rights and interests – which makes them improper defendants for purposes of an appeal. The fact that Judge Walker allowed them to intervene to Defend Proposition 8 does not give them standing to take the case forward. Only the State of California and the named Defendants have standing to file an appeal.

But they don’t want to appeal.

That Judge Walker is pretty shrewd. Game, set, match. Look’s like California is going to have to allow gays to tie the knot. That doesn’t mean the fight is over. At some point, someone is going to bring a federal challenge to a state ban on gay marriage in a place where the state officials will be eager to defend their state’s ban, and appeal any adverse decision all the way up to the Supreme Court. In fact, if I were an opponent of gay marriage, I’d immediately start looking for a gay couple in another state who wanted to sue and start that ball rolling.

Joe H.