Prop 8: Is There Standing To Appeal?

Ken AshfordSex/Morality/Family ValuesLeave a Comment

The pro-SSM lawyers make a legal argument that I hadn't even thought of.  I realize most people won't necessary "get" it, but to anyone who has taken civil procedure, it's brilliant:

Lawyers for the gay couples who successfully challenged California's Proposition 8 have raised a question about whether the other side in the battle — the proponents of Prop 8 — have the legal right to appeal. If this point turns out to get traction, some experts say, it could prevent the case from getting to the US Supreme Court, or even to the court of appeals.

The issue arises as Judge Vaughan Walker considers whether or not to keep in place the temporary hold he placed on his own ruling. Though he struck the law down, he stayed the effect of his ruling for a few days while considering whether to keep that hold in place while the case is on appeal.

On Friday, both Governor Arnold Schwarzenegger and Attorney General Jerry Brown urged the judge to lift the stay and let same-sex marriages resume. Lawyers for the gay couples made the same plea, but they added an additional argument. It's unlikely, they said, that the Prop 8 proponents can successfully carry out an appeal.

They note that the federal courts generally require that before someone can appeal a court decision, there must be some demonstration that a ruling causes that person some actual, concrete harm. For judges who take this issue, known as legal standing, seriously, it's not enough to say "I'm an aggrieved taxpayer."

Lawyers for the gay couples put it this way: "Ballot proposition proponents are not materially different from citizens dissatisfied with a government's failure to enforce a generally applicable law; they lack the concrete injury particularized to themselves and not shared generally by the public necessary to invoke the jurisdiction of the federal court."