Stalemate on Prop 8?

I’m taking a break from Teh Commerz Clawz in favor of new developments on another important national issue: California’s Prop 8 case.

judge vaughn walker

Judge Vaughn Walker, photo courtesy of

I assumed (wrongly) that following the very straightforward decision by Judge Walker in August of 2010, which declared Prop 8 unconstitutional under the 14th Amendment, that an appeal was taking place as usual and we’d hear more about it when the appeals court disagreed with Walker’s ruling and sent the whole thing to the CA Supreme Court.

But, as in many things, I was more than a bit off the mark, as I learned reading the SCOTUS (Supreme Court of the United States) blog this morning. The appeals process is not continuing in a nice, orderly fashion. The reason? This little part of justiciability called “standing.” Essentially, justiciability is the ability of a court to hear a case. There are various reasons the court couldn’t hear a case, which are called the case and controversy requirements, and which are too numerous and off topic to detail here. But standing is one of the most important.

To boil it down, standing means that the person bringing the suit must have a sufficient connection to the law to be allowed to bring a suit in the first place. The person must be able to show
1)  they have been harmed (or will imminently be harmed) in some concrete fashion,
2) that there is an obvious connection between the harm and the law, and
3)  that the change they seek will redress that harm.
For example, I can’t bring a suit over something that happened to my best friend, because I have not been directly harmed myself. Only my friend could do that. I don’t have standing.

But wait, you say. Didn’t the state defend Prop 8? The case is called Perry v. Schwarzenegger, after all. That should mean that the state has standing to appeal the case. True. But the state is not leading the appeal, and didn’t even lead the original defense. Governor Schwarzenegger and then Attorney General Brown have both expressed opposition to Prop 8., the group that originally campaigned for Prop 8, stepped in to fill the defense void as defendant-interveners and have done the same during the appeals process.

But here’s where things get tricky. is definitely not part of the state, and this is a state law. Regardless of how hard the organization worked to pass Prop 8, if they don’t have standing to sue, then what happens to the appeal, or even the original suit?

The Ninth Circuit Court declined to decide the issue of standing and instead asked the California Supreme Court for it’s opinion before continuing. According to the SCOTUS blog post, the CA Supreme Court has docketed the issue and will address it in the upcoming weeks. You can find the Circuit Court’s opinion regarding standing here.

Personally, I don’t believe has standing to sue, since I fail to see even the slightest bit of harm to them from the overturning of Prop 8, beyond their work going to waste. But at this point, I agree with Justice Reinhardt, one of the Ninth Circuit judges, who basically stated in his own accompanying opinion what a pity it would be if the case couldn’t be resolved due to a lack of standing. If no one but the state has standing to sue, and the state won’t, then the Ninth Circuit won’t be able to resolve the issue, and then what?

While I don’t agree with Reinhardt that standing and other requirements have become just unnecessary “procedural bars that preclude courts from deciding cases on the merits,” I do agree that it would be a terrible thing to have this entire case thrown out on the basis of standing. The entire issue has become much too important.




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