Comments on: Revisiting standing

By: Hyhybt

Hyhybt — Tue, 11 Dec 2012 23:23:34 +0000

Thank you for clearing this up. The whole mess has dragged along for so long and bounced around so much all over the place that it’s hard to keep it all straight!

By: Timothy Kincaid

Timothy Kincaid — Tue, 11 Dec 2012 20:54:37 +0000

In other words,

If the plaintiffs are found not to have standing, we win immediately. But only in California.

If the plaintiffs did have standing, then the SCOTUS will consider whether states can ban gay marriage. Their results could be:

A) yes states can and California did so

B) yes states can, but not in the way that California did it

C) no states cannot ban gay marriage

D) states can in no way discriminate against gay people any more than they can by race (or some lesser comparison, say gender which allows some but not all discrimination)

By: Timothy Kincaid

Timothy Kincaid — Tue, 11 Dec 2012 20:50:32 +0000

Those are good questions and I’m not sure anyone knows for certain.

However, as best I understand it, as the proponents were intervenors in the Prop 8 case at Federal court level, that isn’t in question. So Judge Walker’s ruling would not be threatened by a standing challenge. What would be challenged would be the Ninth Circuit Court of Appeals decision, which actually limited the ruling.

Thus, if no standing was allowed in that case, then there was no appeal at the Ninth Circuit level and the SCOTUS has no jurisdiction by which to even look at the case. The prevailing legal decision would be that of Judge Walker.

This would mean either that marriage is immediately legal in California, or that it is legal in the two counties in which it was challenged. (Some suggest that it would be limited to the plaintiffs, but that seems based in fear rather than in law).

If standing was appropriate, then SCOTUS can and will look at the merits of the Ninth Circuit decision, and maybe even that of Judge Walker.

By: Robert

Robert — Tue, 11 Dec 2012 20:30:03 +0000

I guess I’m just a bit worried by the fact that both cases are involving standing, and that in the Windsor case ther is even a question as to if Windsor herself has standing. My fear, I suppose is that the standing issue will be denied and both cases rejected. I’m not sure how that would affect the general outcome for Marriage equality. I also don’t quite get the outcome if it is denied, where does that leave both cases if they are? I really am trying to figure this out, like everyone else, and am not trying to be contrary.

By: Timothy Kincaid

Timothy Kincaid — Tue, 11 Dec 2012 18:01:39 +0000

Robert I’m not sure what else to say. But it all comes down to the fact that this is a federal court case and it is federal law, interpreted by SCOTUS, that lays out the rules for what happens in federal court.

It may seem a simple matter. “The state” has picked it’s defense. But the state, as an entity, may not have that right. And SCOTUS takes a long-haul view of such matters.

In matters involving rights, the state and the people are generally at odds. SCOTUS can’t just simply say ‘well the state wants this or that so we accept it’. Otherwise you could have a unified legislature, executive, and judiciary in a state like Alabama make horrific decisions which would strip rights and representation from the people.

SCOTUS may well find that the proponents have standing. In fact, it’s possible that they took this issue to emphasize that point.

But the decisions of a state court do not dictate the rules of a federal court. Nor will SCOTUS weigh in on the decision of the state.

Federal standing rules are not clear cut. A disputed decision was made by the Ninth Circuit and it should not surprise us too much that they wish to settle that dispute.

By: Robert

Robert — Tue, 11 Dec 2012 17:38:24 +0000

Timothy, Thanks for this article, but can you address the fact that the California Supreme Court relied on two federal cases to grant standing? Kercer v May and Arizonanas for Official English v Arizona. They also relied on California State Law, ammended in 1911, which grants standing to proponents in such cases, as they have been granted the rights and responsibilities to manage and maintain as well as the right to file pettition. As this is settled California Law (the only exception in regards to this particular case is the actual language on the ballott. Most inititives have a statement of fact that they can sue in regards to the proposal).

I’m just having some difficulty in accepting this idea, as it was rightfully decided under California Law, backed up by two cases regarding Federal Law and Standing, and based on the inititive process as outlined in California and as settled law since 1911.

I’m glad (for once) that I could propel the discussion rather than dampen it!!

By: Hunter

Hunter — Tue, 11 Dec 2012 11:51:15 +0000

Sort of a sidebar, but tickled up by the discussion of “protecting the will of the people” from elected officials — do the people even have the right to curtail the civil rights of a minority by plebiscite? It would seem that Romer v. Evans says no. That question probably has no implications for the standing issue, but it’s one that has bothered me for a long time. That’s also the flaw I found in the 9th Circuit’s decision: the idea that once rights have been granted, they can’t be taken away, when our whole understanding of fundamental rights is that they are not granted, they are intrinsic.

Any legal geeks out there care to address this one?

By: Marek

Marek — Tue, 11 Dec 2012 10:36:34 +0000

Tony,
You can see the full decision of Supreme Court of California e.g. here:
http://www.prop8trialtracker.com/2011/11/17/breaking-ca-supreme-court-rules-prop-8-proponents-do-have-standing-to-appeal/

They have there full long discussion about how they see the influence of state law on federal standing (so at least – it is not such an obvious thing), and they explicitly say that they do not ultimately decide Article 3 standing (end of the full paragraph on p.14, footnote 7 on p.11).

I’m not sure but if I understand correctly, they basically said “under CA law proponents would have standing for any proceedings (defending constitutionality, appealing etc.) in the state courts; dear feds, decide yourself if it’s enough for standing in your court”…

It’s kind of the other way around: if SC of CA said that proponents don’t have standing even under the state law, then federal court would really have no basis to grant standing; if SC of CA said what they had said then federal court could but would not have to treat this as a justification for federal standing. 9 Circuit did. Not obvious how SCOTUS will look at this.

By: Neon Genesis

Neon Genesis — Tue, 11 Dec 2012 03:19:36 +0000

It seems to me like the whole argument from popular vote is made completely invalid when the vote is being made based on lies and disinformation for the purpose of taking away the rights of an entire class of people. If we go by the logic of the Prop 8 proponents, then the state of Mississippi should have the right to vote on a ban of interracial marriage just because the majority of Mississippi citizens might want it. But it seems to me that in Loving v Virginia, the Supreme Court had determined that some rights cannot be subjected to popular vote and that some rights should be protected by the federal government.

I’m pretty sure this is why people like James Madison formed the separation of powers in the first place in order to protect the minority from the tyranny of the majority. This argument is also made invalid by the mere fact that even after the four states from this past election voted in support of gay rights, the Religious Right still threw a hissy fit and is already plotting ways to get the vote overthrown, so clearly they don’t believe their own arguments, or they only believe them when it’s their side that has the popular vote.

By: Stefan

Stefan — Tue, 11 Dec 2012 00:57:36 +0000

Tony,

Federal court is a federal matter though.