The Standing Issue Of The Prop 8 Appeal

Ken AshfordConstitution, Sex/Morality/Family ValuesLeave a Comment

Hi.  Welcome to Civil Procedure for Laymen 101.

Today we're going to talk about an interesting case going on right now called Perry v. Schwarzenegger, also known as the California Prop 8 same-sex marriage case.  As you know, a federal judge last week struck down California's ban on same-sex marriages, which was passed by a thin majority in a public referendum known as Proposition 8.  

The case is an important civil rights case, and goes well beyond the borders of California.  After all, it was in federal court, involving the interpretation of the federal Constitution.  The Perry court held, in a nutshell, that when a state does not permit same-sex couples to marry, the state violates guarantees of Equal Protection which are in the U.S. Constitution.  Now, that ruling of unconstitutionality would apply to any state (because all states, not just California, must be in line with the U.S. Constitution).  It's not automatically binding, but being the only federal court to pass on the issue, it carries some value as precedent.  That's why the ruling is so important — it affects the entire country.

So everyone assumed, given the controversial subject matter, that whoever lost the Perry case would appeal it, and it would go all the way to the Supreme Court.

But very few paid attention to a little snag, that legal scholars are now taking up.

It's the "standing" issue.

"Standing" is a legal term.  It basically means "who has the right to bring a case in court".  The general rule is that only injured parties can bring a lawsuit.  You have to show some injury.  In Perry v. Schwarzenegger, the person who brought the lawsuit (Perry) has a claimed injury.  She was a lesbian woman who couldn't get married (there were other plaintiffs as well, but essentially, the whole list is truncated to the first plaintiff).  So Perry had standing.  

She sued the State of California, which you typically do by naming the government officials involved (they are being sued in the official capacity, not as individuals).  So that's why Governor Schwarzenegger is the named defendant, as well as the California Attorney General and others.

So far, so good.

But the problem now is… who has standing on appeal?  The state of California lost the case, as we know, but the governor and the attorney general were against Prop 8 to being with!  They didn't want to win.  And they get to decide if they will appeal.

Wait, wait, wait, you say.  If the officials of the State of California didn't want to win, then who defended the case in court?

Well, in federal and state courts, third parties are allowed to enter cases as "intervenors".  These are people who have a stake in the outcome, but aren't necessarily injured.  The Perry case had several intervenors on the defendant's side — e.g., several individuals and organizations (like "") who were all proponents of the Prop 8 initiative.  The defendant-intervenors were the ones who argued against same-sex marriage in court.  (The plaintiffs also had an intervenor, the City of San Francisco).

So can the losing defendant-intervenors appeal?  The answer is "no".  They still don't have standing.  Judge Walker never ruled that the defendant-intervenors would be injured-in-fact by the strike down of Prop 8.  They weren't actually injured by losing the case at trial (other than, I suppose, ego, but that doesn't count).

So now there is an open question as to whether the Perry case, which everyone assumed would climb all the way to the Supreme Court, can even make it to the next rung on the ladder. 

Possible outcomes to this dilemna?

(1)  Someone may urge the actual defendant (the State of California) to appeal it anyway, in the interests of fairness or justice or reaching a resolution

(2)  The appellate court (the Ninth Circuit) may agree to take the case with a provisional understanding that the defendant-intervenors must show that they have standing

(3)  Nothing.  The case stops here and, under federal law, gay couple have the constitutional right to marry in every state.

I suspect #2 will happen.  But if it does, there's a very good chance that the Ninth Circuit will affirm the lower court's ruling — not on the merits of the case, but because the defendant-intervenors lacked standing to appeal.

Then — if I had to guess — that decision will be appealed to the U.S. Supreme Court, and the Supreme Court will find on behalf of the defendant-intervenors ("Perry I") and send the case back down with instructions to the lower courts to make a decision on the merits rather than the standing issue.  Then that decision (in "Perry II"), whatever the outcome, will work it's way back up to the U.S. Supreme Court — sometime in 2012, I'd say.

UPDATE:  Wonkette muses about the standing dilemna –

The anti-gay-marriage side of the court case does want to appeal, of course, because every time someone gets gay married God gets gayer, but the objection they raised involves the weird legal limbo that these gay marriages might end up in if the decision is ultimately overturned. Judge Walker had this to say on that point:

The ban’s backers “point to harm resulting from a ‘cloud of uncertainty’ surrounding the validity of marriages performed after judgment is entered but before proponents’ appeal is resolved,” he said. “Proponents have not, however, argued that any of them seek to wed a same-sex spouse.”

Ha ha, the legal complications are delicious. Will the gay marriage opponents need to claim they totally want to marry each other now, hoping that the Supreme Court will overturn the decision, saving them from gayness? What if they lose? Will they be forced to consummate their gay love for each other in the Supreme Court’s chambers, with Anthony Kennedy presiding? So romantical!