Prop 8 Machinations

by Nick Glossop on January 7, 201112 comments

Proposition 8, California’s marriage protection (no, you can’t marry that person) act takes two steps forward and three steps sideways into legal Byzantium. Attorney K.O. Myers decodes the play-by-play:

The legal battle over California’s Proposition 8 took an important turn on Tuesday. The Ninth Circuit Court Of Appeals made a move that has legal procedure nerds gazing in rapt attention, while everyone else is left wondering what the heck happened. The court has asked California’s Supreme Court to clarify the issue of “standing,” or whether the backers of the gay marriage-banning proposition have the legal right to actually defend it in court.

Standing is a concept that’s broadly common sensical, but a little harder to grasp at the level of particulars. It’s designed to prevent parties from getting involved in litigation unless they have a real interest in the outcome.

As a hypothetical (and possibly autobiographical) example of why this is useful, let’s say that you and your bratty younger sister are fighting over who gets to pick what you’re going to watch on TV. (Imagine for the purposes of this exercise that your family is living in the Stone Age, and only has one television in the house.) She kicks you in the shins, you pull her hair, and you both go clambering upstairs, yelling for Mom to resolve the conflict.

After much yelling of conflicting viewpoints, your mother determines that you got to pick the last show, and it’s your sister’s turn to choose, even though Smurfs is stupid and you hate it. You storm off to your room in a huff, flop down on the bed and proceed to send text messages to your best friend on the entirely too fancy smartphone that one assumes all pre-adolescents have these days.

Your friend sympathizes; he exhorts you in the most urgent LOLspeak to go find your father, and ask him to override your mother’s decision. You know that’s a bad idea, however, since your parents actually talk to each other; not only will Mom be furious that you tried to circumvent her, but Dad will be just as mad when he finds out what kind of game you’re trying to pull, mister.

Now here’s the crucial part. Once you’ve made up your mind to live with your mother’s (totally unfair) decision, your BFF wouldn’t take it into his head to march over to your house and try to convince your father to reverse your mother’s judgment. Why? Because he doesn’t have any real interest in the case. He sympathizes with you, sure. But he isn’t injured if you have to sit through the stupid Smurfs, and he doesn’t really gain anything if Dad sees the light of reason and lets you watch Thundercats.

Back in the (only slightly) more mature world of the federal and state courts, we have rules about standing, designed to ensure that only somebody who will actually be affected by the court’s decision is allowed to participate in a proceeding. So if your neighbor that you kind of say hi to once in awhile but whose last name you don’t know gets hit by a car, he can sue the driver for his injuries, but you can’t waste the court’s limited time and money trying to sue as well.

Which brings us back to the Ninth Circuit, which was hearing an appeal of a ruling by District Court Judge Vaughan Walker, which invalidated Prop 8 for violating the U.S. Constitution. The appeal was brought by supporters of the Proposition, because officials from the State of California have refused to defend the Proposition in court. The hitch is this; for various reasons, when a federal court is hearing a dispute over a state law, it’s supposed to follow the state’s rules about standing. But the California courts have never made it clear whether simply being in favor of a challenged Proposition creates a sufficient interest to allow the supporters standing to defend its validity. So the Ninth Circuit is stepping back and asking the California Supreme Court to answer that question before it can address the actual arguments.

Now that you’re an expert on standing, you should head over to SCOTUsBlog, and read Lyle Denniston’s take on what the Ninth Circuit opinion means for the future of the appeal.


badrescher on January 7, 2011 at 8:33 am. #

Interesting! So, is it possible that the ruling cannot be
challenged because the only people who have an interest in it are
its victims (for lack of a better word)? Too bad one doesn’t need
to demonstrate standing to get a proposition onto the ballot in the
first place. We could have saved a lot of people a lot of

itzac on January 7, 2011 at 9:49 am. #

So here’s what I guess is a complicated legal question:
Who, besides gay people wanting to be married, would have standing
in this case, and what might their interest in the case be? I’m
probably taking too philosophical an approach, but in order to have
an interest in the right to marry, wouldn’t you need to have an
interest in the marriage in question?

Tweets that mention Prop 8 Machinations « The Paltry Sapien -- on January 7, 2011 at 11:23 am. #

[…] This post was mentioned on Twitter by Jenna Marie.
Jenna Marie said: RT @KO_Myers: Wondering why the Ninth Circuit
sent the Prop 8 appeal back to the CA Supreme Court? You
haven’t read this: […]

K.O. Myers on January 7, 2011 at 11:57 am. #

Barbara – That’s exactly the question. The state clearly has standing, because the trial court ruling invalidates a change to the state constitution. But if the state chooses not to appeal, there might not be anyone else who suffers enough of an injury that they have the legal right to appeal.

For instance, in another part of the ruling, the Ninth Circuit said that the Imperial County board of supervisors definitely didn’t have standing. They had argued that they should, because overturning Prop 8 meant they’d have to issue marriage licenses to gay couples. The trial court said that wasn’t enough of an interest to allow them standing to appeal, and the Ninth Circuit agreed.

For what it’s worth, I’m betting the California Supreme Court says that the Proposition supporters do have standing, but it’s definitely not a no-brainer.

K.O. Myers on January 7, 2011 at 12:03 pm. #

Itzac – The question is complex, but you’re looking at it from the other side. The plaintiffs who challenged the Proposition actually were gay couples whose right to marry was taken away by the passing of the Proposition. Nobody has, as far as I know, ever questioned their right to sue to have Prop 8 struck down.

Your second question is exactly what the California Supreme Court needs to make clear. Overturning Prop 8 doesn’t effect any rights that its supporters hold personally. Their marriages, real or hypothetical, aren’t impinged upon. The only thing that’s changed for them is that a) their vote to pass the Proposition has been invalidated, and b) they have to live in a state where zOMG teh gays can marry. So the California Supreme Court needs to decide if, under California law, the invalidation of the vote, and the subsequent torrent of fabulous yet tasteful wedding ceremonies, together are enough of an injury that the Prop 8 supporters can challenge it in court.

I’m betting they conclude that the invalidated vote gives them standing, but it’s by no means certain.

badrescher on January 7, 2011 at 12:42 pm. #

The problem with the second (zOMG gays can marry) is that their reasons involve moral and religious values not recognized by government.

If they rule that the invalidated vote is grounds for standing, that opens CA up even more to mob rule.


K.O. Myers on January 7, 2011 at 1:31 pm. #

Barbara – I agree with you on the first point. At least that’s the way it should be. It isn’t uniformly true, however.

On the second point, I’m not so sure. Whether the CA Supreme Court says the proponents have standing or not, the referendum system will still be in place. The mob has already had its say, and letting them argue that they should be able to defend their torches and pitchforks in court doesn’t really change that, does it?

In fact, there’s an argument that allowing them standing is better in the long run. If the proponents want to mount a private appeal, and they’ve got the right to do so, it saves the state having to spend money defending a proposition that it believes is unconstitutional.

M Engeland on January 8, 2011 at 12:00 am. #

Society throughout the ages have defined marriage as between a man and a women. That is the definition. Since when does a judge have the right to change a English Language definition? If a man was the color blue and a women the color yellow and when those two colors are combined you get the color green and that we can call that marriage. Two blues do not make green when mixed but here we have a judge who wants to say that two blues (two men) can make green (marriage). Judges can be high in intellect but low in good sense because of idealogical blindness. Is not Judge Walker gay?

K.O. Myers on January 8, 2011 at 5:41 am. #

From the standpoint of the law and the government, marriage is a contract. It’s an agreement between two private citizens, that generally encompasses the sharing of property, co-habitation, and restrictions on behavior. But the terms of the actual agreement are as unique as the relationship upon which it’s based.

The gender of the parties making the agreement isn’t particularly relevant. It does no harm to either the state or its citizens to allow same sex couples to marry. If anything, the state would benefit, since it charges couples for marriage licensing, and so would stand to make a bit of extra money.

Our legal system is, at least theoretically, supposed to ensure that all citizens are treated equally under the laws. Allowing homosexuals the right to marry whomever they choose does no harm to the state or to its citizens, so there is no reason for the state to deny that right.

Please note that this is strictly from the government’s standpoint. Religious institutions are free to discriminate privately against homosexuals, and don’t have to participate in or sanction same sex weddings unless they choose to. State recognition of gay marriage won’t affect that at all.

Craig Elliott on January 8, 2011 at 9:29 am. #

“Two blues do not make green?” Your opposition to gay marriage is based on the colour wheel?

itzac on January 10, 2011 at 12:08 pm. #

One of the lies of the campaign for Prop 8 was that churches would be forced to perform gay marriages. Churches can refuse to marry anyone for any reason, or none at all.

Greg Laden recently posted on arguments of the form “all cultures have a …” which you might find interesting, M.

Matthew Payne on January 8, 2011 at 7:56 am. #

“Society throughout the ages have defined marriage as between a man and a women.” Except when it defined it as marriage between a man and a girl, or a man and several women, or between a man and a women who you didn’t have sex with (that’s what the brothels were for) or between women and a god (nuns as “brides of Christ”) or between men and a big brick building (priests as married to the “church”) or between a man and a commodity (brideprice, dowry, etc.). Yawwwnn! This “society” dude better get his act together.
And, yes, for the sociologically, anthropologically and historically impaired among us you can find “marriage” defined almost any which way to Sunday depending on the “society” (fine vague universal there which is clearly a projection of the commentator’ s own preferences) you cherry pick.