|
California's Opponents of Gay Marriage May Lack Standing to Appeal
When US District Judge Vaughn R. Walker overturned California's ban on gay marriage, passed by referendum as Proposition 8, most analysts including this one expected the case to wind up at the Supreme Court for final adjudication. Now, it may be that said analysts were too hasty in their assessment. Supporters of the ban may not have standing to appeal the case at the 9th Circuit Court of Appeals, let alone take the case to Washington.
Judge Walker stayed his ruling until Wednesday, August 18 to allow appeals to be filed. The defendants in the case were Governor Arnold Schwarzenegger and Attorney General Jerry Brown, and as the losing defendants, they do have the right of appeal. Unfortunately for the supporters of Prop. 8, both men have cheered the decision and have no intention of lodging an appeal.
Private groups like ProtectMarriage.com, which defended the Proposition in Judge Walker's court, has said it wants to appeal, yet legal minds say it may not be able to do so. The Los Angeles Times says, "To have standing in federal court, a party must show that it has suffered an actual injury, and [Judge] Walker said no evidence suggests that the campaign would meet that test." Judge Walker advised, "Proponents may have little choice but to attempt to convince either the governor or the attorney general to file an appeal to ensure jurisdiction."
The same paper also says:
Chapman University law professor John Eastman, who has been critical of Walker, said ProtectMarriage.com and its allies could try to prove standing by pointing to the fact that the California Supreme Court had given it authority to defend Proposition 8 in state court.
But UC Irvine Law School Dean Erwin Chemerinsky said the effort may be difficult. 'Their injury is ideological, and there is a century of precedent that ideological injury is not enough for standing. I think this lets the 9th Circuit and the Supreme Court follow well-established law and avoid the hard constitutional ruling.'
Fans of irony will be pleased to note that the issue of standing has altered over the last generation or so, done largely by conservative jurists and legislators to limit the sorts of cases that a federal court can hear. ProtectMarriage.com may be hoist on a conservative petard.
If standing is denied the private groups, the Walker decision will be the end of the matter. Gay marriage will be legal in California, but it will not be the law for all America as it would if the case went to the Supreme Court and it threw out Prop. 8. Of course, anyone who has studied American history will note that, since the early 1900s, whatever happens in California often heads east within a decade.
© Copyright 2010 by The Kensington Review, Jeff Myhre, PhD, Editor. No part of this publication may be reproduced without written consent. Produced using Ubuntu Linux.
Kensington Review Home
|
|
|