Article III Standing May Determine Status Of Marriage

Judge Walker has ordered that the stay of entry of judgment in Perry v. Schwarzenegger will expire at 5:00 p.m. on August 18.  That means at the start of business on August 19, 2010, California will once again be a same-sex marriage state — unless the Ninth Circuit grants a stay of entry of judgment pending appeal.

Everyone involved has assumed that there will be an appeal, and in fact I think there will be one too.  But there is a question about that. 

The plaintiffs, as the prevailing parties who won everything they asked for, cannot appeal and would realize no advantage in doing so.

The named defendants will not appeal because they have chosen not to appeal — whether rightly or wrongly.  Both Governor Schwarzenegger and Attorney General Brown have said that they do not wish to see the decision appealed and will not authorize an appeal. So whether they should or should be appealing, and whether they should or should not have fought on behalf of Prop. 8 at the trial court level, the fact is that they aren’t going to appeal.

The Board of Supervisors of Imperial County have voted to attempt to appeal, either directly or by intervention.  Problem is, Imperial County was not a party to the lawsuit at the trial level, so it clearly lacks standing to appeal; what’s more, it is a political subdivision of the state of California and therefore subject to the state’s control and override.

Which leaves the question of whether the proponents of Prop. 8 — the ones who actually mounted the sort-of “defense” of Prop. 8 at the trial court level — have standing to pursue an appeal.  Apparently, although the standing issue was raised and addressed in the trial court proceedings, it was never resolved and the parties agreed to go forward with the trial on the presumption that the proponents had standing to appear.  This strikes me as a very strange procedure indeed.  Article III is clear and two and a quarter centuries of caselaw makes even more clear that in order to have a right to be heard as a litigant (and not an amicus) in a Federal court, you need to make a showing of some kind of tangible injury you personally have suffered.

That, in turn, is the crux of my confusion about the bitterness of opposition to same-sex marriage:  how is it that you are hurt if your gay neighbors get married?  Are you somehow less married than you were before that license issued?  Because it’s clear that “I don’t approve of your marriage” isn’t enough.  And the question the Ninth Circuit will have to address is, how is it that Dennis Hollingsworth, Gail Knight, Martin Gutierrez, Mark Jansson and have been are hurt because the Registrar of the County of Los Angeles issues a marriage license to Paul Katamai and Jeffrey Zarrillo?

Now, let’s say you’re a judge on the Ninth Circuit.  Or a Justice of the Supreme Court.  On the one hand, a part of you is salivating over the chance to write an opinion that is guaranteed to be studied in law schools, analyzed in law reviews, and debated for years to come.  It’s a chance to show the world how good you are at your job, a chance to make a meaningful statement and a significant impact on the state of individual rights in this nation.  But on the other hand, you know that a huge number of people are going to be super-pissed-off with whatever you decide, whether you rule for the plaintiff or the defendant.  You can’t help but notice that Judge Walker has already been subjected to calls for his impeachment by some very sore losers.

You just might decide that you don’t need that kind of a beating.  What better way to duck the issue than to issue a short ruling based on standing instead?  Punt on the merits and close the file — simple, fast, and best of all, safe.

Now, I personally think that having permitted the Prop. 8 proponents to have a trial on the merits at all, Judge Walker effectively decided that Dennis Hollingsworth, Gail Knight, Martin Gutierrez, Mark Jansson and do have enough of an interest in the outcome of the case to confer Article III standing.  They should be allowed to appeal, and they should offer their very best arguments.  The system works best when both sides of a dispute offer full-throated advocacy for their desired outcome.  It also works best when the judges deciding the case do so fearlessly and based on the law, logic, and evidence, and without regard for whether their decisions will be politically popular.  And finally, the system works best when the loser is willing to accept an adverse result.

But there is no guarantee that either the Ninth Circuit or the Supreme Court will see it that way.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. If this is allowed to stand and the proponents of Prop 8 are denied an appeal, the whole situation reveals itself to be fraudulent.This is more relevant when noticing that the 8th Circuit has already ruled that there is NOT a constitutional right to is it that you are hurt if your gay neighbors get married?Because YOUR tax money is being spent to support an activity that ought to, by amendment to YOUR state's constitution, be illegal.Further the 9th circuit – no matter where they fall – has every incentive to take this case. Otherwise, we have one impeachable, demonstratably biased district judge's opinion so far against another Circuit court that has already thrown out Walker's logic.Also, I'll note that, since Prop 8 was sponsored by a civil group OVER the objections of Schwarzenegger and Jerry Brown, they ought to have standing in support of that which they sponsored.To try to make an end-run around the judicial system – attempting to make the ruling stick by playing games and dodging the appeals process – is ridiculous.

  2. Now you can get a taste of how I felt in response to this decision.Taxpayer standing is limited to Establishment Clause violations, see Flast v. Cohen, 392 U.S. 83 (1968), and then only when the Establishment Clause violation is caused by a legislative rather than an executive action. Hein v. Freedom From Religion Foundation, 551 U.S. 587 (2007). I happen to disagree with the holding in Hein, but it is the law of the land nevertheless.Moreover, if the prohibition of an activity violates the Federal constitution, it should never have been in the state's constitution in the first place, therefore there is no injury. Now you can enjoy the taste of how circular it can get when judges decide to address standing rather than substance. Ain't we got constitutional law fun now?

  3. I find it hilarious that opponents of same-sex marriage are urging judicial activism – they want the courts to ignore the black-letter law on standing and let the intervenors appeal anyway on the pretense that they have standing because IT'S NOT FAIR. I always thought it was those squishy liberals who wailed about courts following the law instead of choosing the result they deemed "fair".

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