Posted Tuesday, September 27th, 2011 by David Yin
Prop 8 Standing Problems: Where’s the Injury?
As recently covered in this blog, the California Proposition 8 case is now before the California Supreme Court. The court must decide the question of whether Prop 8′s official proponents would have legal standing in California state courts to mount an appeal when state officials have declined to do so.
This question was posed to that court by the federal Ninth Circuit Court of Appeals in January, and the California Supreme Court’s determination may be used to help decide whether the Prop 8 proponents have Article III standing to appeal the federal District Court’s decision holding Prop 8 unconstitutional. All this wrangling over legal procedure has become an exhausting, academic prelude to what seems to be an inevitable case before the U.S. Supreme Court on the fundamental issue: equal protection and gay marriage.
David Boies and Ted Olson, representing the plaintiffs against Proposition 8, after oral argument.
The lawyers against Prop 8, Ted Olson and David Boies, have been chided for employing a legal stratagem to increase the likelihood of ending Prop 8 in California at the expense of bringing the national question of gay marriage expediently before the U.S. Supreme Court for a final resolution. By levying the challenge to Prop 8 against a reluctant governor and attorney general, and omitting the Prop 8 proponents, Olson and Boies had hoped for precisely what happened–after losing the trial, the governor would not appeal, and the decision against Prop 8 would stand by default.
Judge Reinhardt, writing for the Ninth Circuit in certifying the question to the California Supreme Court, noted with frustration:
“[I]t is clear that all of this would have been unnecessary and Plaintiffs could have obtained a statewide injunction had they filed an action against a broader set of defendants, a simple matter of pleading. Why preeminent counsel and the major law firms of which they are a part failed to do that is a matter on which I will not speculate… As a result, the technical barriers and the inexplicable manner in which the parties have conducted this litigation may in the end not preclude an orderly review by the federal courts of the critical constitutional question that is of interest to all Americans… In the meantime, while we await further word from the Supreme Court of California, I hope that the American public will have a better understanding of where we stand today in this case, if not why.”
While the legal doctrine of standing may appear to be unnecessary sideshow, it is unfair to think of the standing question as mere procedure.
The issue of standing, and the difficulty Prop 8 proponents are having in obtaining it, implicates the very heart of the campaign against gay marriage. The Constitution requires that federal courts only hear real cases and controversies, thus parties must possess “standing” to pursue their cases. The most straight-forward way to prove standing would be to show, in the language of Justice Scalia, that they “have suffered an ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not `conjectural’ or `hypothetical’…” The literature of the Prop 8 campaign is peppered with assertions as to the harms of allowing homosexuals to marry: gay marriage leads to heterosexual divorces, impairs heterosexual child-rearing, etc. Yet instead of showing ‘injury in fact’ and obtaining standing to appeal the quick and conventional way, the Prop 8 proponents have fabricated entirely new theories for legal standing, and now ask that the Ninth Circuit create new law to find a right of private citizens to represent a state’s interest in court.
If only Prop 8 proponents, or any of their members, could show their claims regarding the harms of gay marriage were not groundless, then they might have a legal claim to appeal as well.
Image from Steve Rhodes.
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