The Standing Issue in the Proposition 8 Case Isn’t a Done Deal

As the Anglican Curmudgeon points out:

In the California case in Judge Walker’s court, the principal defendants were Governor Schwarzenegger and the Attorney General, Jerry Brown. Both chose not to defend the constitutionality of the amendment, which had passed by a significant majority at the polls. (In doing so, they placed their personal views above their duties to uphold California law. Apparently, only laws enacted by the Legislature are worthy of their support.) As a consequence, neither is expected to appeal the decision, as well.

The persons who had caused the proposition to appear on the ballot were allowed to intervene to defend its constitutionality. In the same way, Judge Walker allowed San Francisco County to intervene as well to oppose the measure, although in an unpublished decision the same day he ruled on Prop. 8’s unconstitutionality, Judge Walker denied a motion by Imperial County to intervene on behalf of the Proposition — go figure. (This is not a judge whose decisions bear the stamp of impartiality — the only words adequate to describe his judicial approach are “outcome-oriented.”)…

Thus, it hardly seems proper to deny the right of Imperial County to challenge Judge Walker’s ruling on the ground that it had no basis on which to assert a right of intervention. If Imperial County refuses to implement his decision, it clearly would face civil liability under 28 U.S.C. § 1983 for that failure, with the possibility of damages. Just as with the doctors who faced potential criminal liability in Diamond v. Charles (above), this potential liability under federal law should have given the County officials a sufficient stake in the outcome to make Judge Walker’s denial of their motion to intervene reversible error — and by the same token, that stake in the outcome should supply the County officials with standing to carry the principal appeal on the merits.

Judge Walker’s one-sided attempt to block the participation of the only real parties who had both a right to be involved and a concrete stake in the outcome should in and of itself serve as a beacon to any appellate court that his decision was wholly outcome-oriented. The Ninth Circuit, of course, is generally just as liberal as Judge Walker (and particularly with regard to its current motions panel), so there is no telling whether they will be able to resist an equally outcome-oriented approach in handling the appeal. The first gauge of what will happen in the Ninth Circuit is whether it will act to continue the stay of his injunction pending the outcome of the appeal. (And if it does not, the door will thereby be opened for an appeal to Justice Kennedy and the full Supreme Court to issue the stay, as described in this post.) So stay tuned — the case is by no means a done deal yet.]

Most people are unaware of the Imperial County action, and Judge Walker attempted to bury it in an unpublished opinion.  It will be interesting to see whether the SCOTUS will do anything about this (I think the Ninth Circuit’s idea is a foregone conclusion.)

I’ve always felt that the Proposition 8 effort was ill-advised, and that this would have been the perfect moment to pull the rug out from under civil marriage altogether.  Subsequent events have confirmed that judgement.

Having said that, I think Haley’s parting comment is still valid:

Nevertheless, the people who voted for Proposition 8 have every right to feel disenfranchised. The courts, the State’s elected officials, and its homosexual activists are colluding in broad daylight to prevent any ruling on the merits by anyone other than a single — and decidedly not impartial — judge.

If we live in a country where the judiciary routinely engages in outcome based decisions and the executive branch colludes with them, we no longer have a representative democracy.  All of these campaigns, polls and elections are nothing but a pile of rubbish, and the basic nature of this republic–to say nothing of its legitimacy–is altered dramatically.

2 thoughts on “The Standing Issue in the Proposition 8 Case Isn’t a Done Deal”

  1. Unfortunately for the argument in support of Imperial County’s standing to appeal, the County must be harmed by the decision and the harm can’t be that the county will be forced to continue as it did during the time Prop 8 was in effect… which is to continue to issue marriage licenses in accordance with California State law.

    As far as their intervention in the original case is concerned, they stated explicitly that they weren’t going to participate in the trial and that they were only attempting to attach themselves to it for the purposes of appeal should the AG or Governor decide not to appeal. Well, being that they can’t be harmed by a lack of Prop 8 – it is merely a law that they will no longer be required to adhere to – they have no standing. It’s one thing to claim that you aren’t going to adhere to an unconstitutional law, but I don’t think you could seriously argue that allowing same-sex marriage is unconstitutional… it violates nobody’s rights. The clerks that issue licenses are not “allowing” same-sex couples to marry – they have no discretionary authority in that regard, they are merely issuing a license. It is the State that is allowing them to marry. If the clerk has some issue with same-sex marriage, it can try to take that up with the State, but that’s a completely different law suit.

  2. Actually, the issue of whether same sex civil marriage is unconstitutional is the issue here, not an assumption.

    Proposition 8 was an amendment to the state constitution ratified by referendum, which California (for better or worse) allows. Whether it violates the state constitution is not an issue because it is part of the state constitution. Whether it violates the federal constitution is what this case is all about.

    Personally I think that civil marriage is harmful, but that is, as you would say, a different law suit.

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