More on pending Proposition 8 issue

Three articles this morning address the West Coast’s "Proposition 8,"same-sex marriage issue, and the possible course it could take.

Law.com’s Tony Mauro’s article, first of all, says "..now that Judge Vaughn Walker has decided that Prop 8, which banned same-sex marriage in California, is unconstitutional, the possibility is real that the case might never make it on appeal all the way to the Supreme Court" because of the issue of standing.

"Under Supreme Court precedent," Mauro writes, "it's unclear that proponents of legislation would have standing to defend it if state officials are not themselves defending it, because they can't show that they are suffering the necessary injury. In Arizonans for Official English v. Arizona, a 1997 case, the Court expressed 'grave doubts' about the ability of such groups to challenge rulings that strike down ballot initiatives… George Washington University Law School associate dean Alan Morrison, a longtime expert on standing and civil procedure, said the Arizona precedent 'came right up to the edge' of saying there was no standing for groups like those that favor Proposition 8. Morrison also noted that since that ruling, new members like Chief Justice John Roberts Jr. and Samuel Alito Jr. have joined the Court and are 'no friends of expanding standing.' Setting high standards for standing has been one of several gate-keeping procedural doctrines conservative justices have used to weed out what they view as excessive or frivolous litigation from the courts."

Mauro also referred to a posting on Cornell Law School professor Michael Dorf’s blog last Monday, who, "while sympathizing with Walker's decision, wrote that a good argument could be made for standing when state officials are reluctant to defend a successful ballot initiative. 'The ballot initiative process is available precisely because the People cannot always trust their elected representatives to carry out their will,'" he said.

Another view of the standing issue came from SCOTUSblog last Thursday.

Along with Arizonans, ScotusBlog also mentions the Supreme Court's 1985 ruling in Karcher v. May, "suggesting that state legislators may sometimes do so when other state officials refuse, provided state law allows for that. The proponents of the ban on gay marriage, in direct conflict with Judge Walker's interpretation of California law, argue that state law does give them the right to be in court. California law, they said, makes their case different from the Arizona English initiative case."

ScotusBlog also pointed that if the case does falter because of a lack of "standing," Judge Walker’s 136-page opinion on August 4 against Proposition 8 would stand as a precedent, but one that represented the judgment of a single federal jurist, without the enlarging endorsement of a federal appeals court or of the Supreme Court. District Court rulings, even those that are widely admired within the legal community, do not have the compelling force behind them that a higher court’s decisions do.

"In practical terms, what that would mean was that gay marriage would be legal in California, the nation's largest state. And this would add a sixth state that permits same-sex couples to enter legal marriage. Such nuptials , however, would still be illegal in more than three dozen states, since the Supreme Court would have had no chance to turn Judge Walker’s ruling into a nationwide, binding precedent."

The third article, in the New York Times this morning, adds another wrinkle, quoting Vikram Amar, a professor of law at the University of California, Davis, who said "the proponents of Proposition 8 had made more compelling arguments in recent court filings than they had in the two-week trial in January and in their closing arguments in June." In particular, Mr. Amar said, the defendant-interveners had done a good job in arguing that allowing same-sex marriages to proceed during appeals of Judge Walker’s decision could lead to confusion about their validity… "I do think that if there are marriages that are entered into and then he's overturned, those marriages are vulnerable." Amar, opposes Proposition 8.


Wikipedia's entry on same-sex-marriages notes that, "in 2005, the U.S. District Court in Nebraska's Citizens for Equal Protection v. Bruning, holding that prohibiting recognition of same-sex relationships violated the Constitution was overturned on appeal by the United States Court of Appeals for the Eighth Circuit in 2006, which ruled that 'laws limiting the state-recognized institution of marriage to heterosexual couples ... do not violate the Constitution of the United States.'" [See also Wikipedia’s "Same-sex Marriage in the United States" and "Same-sex marriage law in the United States by state" ]