Semi-random thoughts on the current status of the Prop 8 legal battle, in no particular order.
- Law Prof Erwin Chemerinsky–a brilliant legal scholar–had a smart commentary in Sunday’s L.A. Times noting that the Prop 8 supporters could be undone by their own favorite Supreme Court justices. He points out that it is the conservative justices who have worked hard to limit standing in in recent decades, and if they follow their own precedents, the Prop 8 supporters just don’t qualify for standing in this case. Although the defendants were allowed to intervene in the District Court trial (as the actual legal defendants, the Governor and Attorney General of California, both chose to not defend the measure), having been the defendants in court is not in itself enough to grant standing for appeal.
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.
In another case, voters who supported an Arizona initiative declaring English to be the official language of the state tried to appeal to defend the law. The Supreme Court unanimously ordered the appeal dismissed and expressed “grave doubt” as to whether supporters of an initiative have standing to appeal to defend it.
Chemerinsky is quite liberal, and I have no doubt his commentary was written in part to tweak conservative noses. I also have no doubt that were the 9th Circuit or Supreme Court to follow precedent on standing and deny the Prop 8 intervenors standing to appeal, that conservatives across the country would utterly fail to recognize that they’d been hoisted on their own petard, and would gripe even more about “activist” judges.
But beyond that, I am very dubious that the Supreme Court’s conservatives will follow their own precedents, not simply because justices like Scalia will find the idea of a constitutional right to same-sex marriage an abomination, but because the District Court judge made a 14th Amendment ruling, and I don’t see the Court allowing the 14th Amendment to mean one thing in California, and something else in the other 49 states.
- The 9th Circuit has issued a stay of Judge Walker’s ruling, meaning no more same-sex marriages will take place in California at this time. I think the stay may be a good political outcome, in that it delays the arrival of the issue before the Supreme Court and slower is probably better for the supporters of SSM. But I think it’s the wrong legal decision.
To receive a stay, the appellant needs to show that they they have a substantial likelihood of success on appeal and that they–personally–will be irreparably injured if the stay is not granted. I frankly don’t know how to evaluate the first standard in this case, so let’s pessimistically assume that in fact the Prop 8 intervenors do have a substantial likelihood of success on appeal. But I don’t think they can show irreparable injury to themselves. And indeed they don’t really try to, but argue harm to the public of the state if same-sex marriages are allowed, claiming it is imperative to avoid the
confusion and irreparable injury that would flow from the creation (emphasis added) of a class of purported same-sex marriages.
But this argument doesn’t really fly, because California already has about 18,000 legal same-sex marriages (those who were married after the State Supreme Court struck down the same-sex marriage prohibition and before Prop. 8 passed). That class already exists in California, so nothing that happens now can “create” it.
More vilely, they claim same-sex couples themselves will be harmed, because if they get married their marriages might later be invalidated. How’s that for disingenuous paternalism?
- Of course the fact that the Court granted a stay doesn’t mean that the Prop 8 intervenors will succeed on appeal, or that they’ll even be allowed to pursue the appeal. The 9th Circuit’s order granting the stay also requires the the Prop 8 proponents to “include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing.” I am not tremendously well-versed on legal procedure, but I find that curious given that the proponents did discuss that issue in their request for a stay. Does that mean the panel did not find their argument so far persuasive enough? If I was on their team, I think that would be the safest way to interpret that order.
- Imperial County has also filed notice to appeal not only the ruling but Judge Walker’s order denying them standing to intervene. I have no idea how strong their argument is, but were I a 9th Circuit jurist their case would be severely harmed by the fact that Imperial County’s lawyers are from “Advocates for Faith and Freedom.” No kidding. Why don’t the geniuses in Imperial County just publicly announce that Judge Walker is right, and that they want to use the government to enforce religious values?
- Those interested in following the development of this case in the 9th Circuit can sign up for email announcements from the 9th Circuit, notifying them as new documents are filed, and rulings made.