Monday, August 16, 2010

Prop 8: We Won, Now What?

While the common assumption about Perry v. Schwarzenegger (popularly known as the Prop 8 case) is that it will eventually reach the US Supreme Court, there are now rumblings, based on Judge Walker's order (PDF), that it may stop in California.

Why, you may ask?

Those who seek to appeal the decision, an association called Protect Marriage, may lack standing to do so. Generally, in order to have standing to sue or defend, a party must assert "an invasion of a legally protected interest" that is "concrete and particularized" and "actual or imminent.'" The following case, from which this doctrine is expressed, will help illustrate the "standing" issue.

In Arizonans for Official English v. Arizona, voters passed an initiative making English the official languge of the state. There, a private individual brought suit against the state arguing that the initiative would prohibit her from speaking in Spanish during her state government job. The District Court found the law unconstitutional and, consequently, Arizona's Governor announced that she would not pursue an appeal. However, the private group that sponsored the initiative tried to intervene in the case in order to appeal.

During the appeals process, the individual suing the state resigned from her job, making the case moot. However, without definitively offering a conclusion on the issue of whether the private group had standing to defend the law, the Court did offer some explanatory guidance. The private group that sponsored the initiative had argued that they had standing to defend the law because of the funds and effort they expended in achieving adoption of the initiative. The Court disagreed, noting that private ballot sponsors are not elected representatives and have no legal authority to defend, in the place of public officials, state laws. Also, the "concrete injury" of not being able to defend the law was not apparent, making the Court have "grave doubts" as to their standing.

Now, turning to Perry, California's Governor, Attorney General, and other relevant state officials have indicated that they will not defend Prop 8 on appeal. In their place, Protect Marriage, the private group that organized the campaign for Prop 8 is seeking to appeal in their place. In his order (cited above), Judge Walker used Arizona for Official English to suggest that Protect Marriage "may have difficulty" demonstrating standing to appeal. Namely, he noted, private citizens have no authority to regulate marriage or issue marriage licenses and, in the case of Protect Marriage, they have failed to enumerate "even one specific harm" they will face once the state begins to issue marriage licenses to same-sex couples.

Judge Walker then continued, in somewhat harsh language. I post it below just because it is so delicious:

"...[T]he uncertainty surrounding [Protect Marriage's] standing weighs heavily against the likelihood of their success. Even if proponents were to have standing to pursue their appeal, as the court recently explained at length the minimal evidence proponents presented at trial does not support their defense of Proposition 8. Proponents had a full opportunity to provide evidence in support of their position and nevertheless failed to present even one credible witness on the government interest in Proposition 8. Based on the trial record, which establishes that Proposition 8 violates plaintiffs’ equal protection and due process rights, the court cannot conclude that proponents have shown a likelihood of success on appeal."

And so here, I waver. But in a good way.

If the case does not proceed because of Protect Marriage's lack of standing, Judge Walker's opinion will stand as precedent, albeit it will remain somewhat limited coming only from a district court. While I think that we have better than average odds of the Supreme Court upholding Walker's decision to some degree, having the case "end" in California would have the benefit of having legal same-sex marriage in yet another state.

What better way to see if all of the claims of Great Harm to civilization come to pass than being able to observe what happens when same-sex marriage is legal? Legal same-sex marriage has been occurring uneventfully in Massachusetts for almost 7 years now and, when it begins to do the same in California, people who aren't obsessed with the issue will soon forget about it. Having legal same-sex marriage expose them for the windmill-tilting Don Quixotes they are is likely a huge fear for "marriage defenders."

Yet, because the "marriage defense" side presented such a lack of credible, competent, rational evidence in support of their position, we do have a good chance of winning in the 9th Circuit, and ultimately at the Supreme Court. Winning at the Supreme Court could have a wider nationwide impact on the legality of same-sex marriage and could potentially, depending on how broadly or narrowly the ruling is, impact all state bans. I want this case to go forward, primarily because the "marriage defenders" blew it. They don't have solid reasons in support of same-sex marriage bans, but I bet they will never again make the mistake of letting such a gross mismatch of legal strategy and evidentiary support happen.

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