Today's LA Times: Prop 8--A Matter of Standing

[CaliforniaPeggy]

A legal doctrine fashioned by conservatives may end the litigation and provide a decisive victory to the supporters of marriage equality for gays and lesbians.

By Erwin Chemerinsky

August 15, 2010

Ironically, it is a legal doctrine fashioned by conservatives that may provide a decisive victory to the supporters of marriage equality for gays and lesbians and end the litigation over California's Proposition 8.

For decades, conservative justices on the Supreme Court have ruled to limit who has standing to bring a claim in federal court. In cases involving civil rights, environmental protection and the separation of church and state, the court has ordered that cases be dismissed because the party pursuing the case had no legal standing to do so.

Now, the U.S. 9th Circuit Court of Appeals — and, ultimately, the U.S. Supreme Court — could well rule that opponents of same-sex marriage have no standing to appeal U.S. District Chief Judge Vaughn R. Walker's decision striking down Proposition 8.

Article III of the U.S. Constitution restricts federal courts to deciding "cases" and "controversies." The Supreme Court long has held that in order to meet this requirement, a person or group pursuing legal action must have standing, a status conferred only on those who have suffered a direct, concrete injury. An ideological objection to a government action, no matter how strongly felt, is insufficient for standing.

See the rest at the link:

http://www.latimes.com/news/opinion/commentary/la-oe-chemerinsky-gay-marriage-20100815,0,6839883.story

[steve2470]

1. k and r ! nt

[CaliforniaPeggy]

3. Thanks, Steve!

[ruggerson]

2. Thanks Peggy

good piece. Erwin is usually right on the money. The only downside to the case stopping right here is the USSC doesn't get to hear Walker's iron clad decision.

[CaliforniaPeggy]

4. You're welcome!

I love how he thinks. He is so sharp with intelligence to the max.

I just wish I had written this...

[msanthrope]

8. I had him as a professor, years ago.

I spent a semester visiting in Chicago, and by sheer luck I got his class.

I wore a Yankees jersey to class one day, and we had a pleasant exchange about how the Yankees/Cubs (again) would be the Series to end all Series...and the called shot.

Great guy.

His bar prep courses on ConLaw are legendary.

[msanthrope]

5. Three cases that Chemerinsky alludes to---and a bonus.

Here's the cases discussed, for your own edification--great article...


Diamond v. Charles--Illinois/abortion/Doctor...
http://supreme.justia.com/us/476/54/


LYONS--chokehold/LAPD standing case...
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=461&invol=95
http://en.wikipedia.org/wiki/City_of_Los_Angeles_v._Lyons


Standing Yniguez v. arizona--English as official language (case that will keep Imperial COunty out.)
http://www.law.cornell.edu/supct/html/95-974.ZS.html


The grandaddy of all Scalia standing cases---

http://www.law.cornell.edu/supct/html/90-1424.ZS.html
http://en.wikipedia.org/wiki/Lujan_v._Defenders_of_Wildlife

[unblock]

6. according to this article, the supreme court has some screwed up precedents regarding standing

a victim of a police chokehold lacks standing because he can't prove that he PERSONALLY is likely to be a victim of a chokehold AGAIN?

and the president can fund religious social services with impunity, even if it's a an acknowledged violation of the first amendment, because no one in the country has standing?

[msanthrope]

12. Mr. Lyons could not prove that he would be choked, again. No Standing While Black.

Yes...that is an actual, correct reading of Lyons....

I am not joking.

[unblock]

21. reduction ad absurdum doesn't work in the court of the absurd

along the same lines as:

defense attorney, appealing: "but mr. scalia, we're knowingly killing innocent people," producing exonerating dna evidence.

scalia: "and your point is...?"

[msanthrope]

22. "Actual innocence" does not Justice invoke. Just ask Mr. Herrera. n/t

[Ruby the Liberal]

7. What happens if Whitman wins the Governor's seat?

We know Jerry Brown isn't pursuing it. Could she?

[CaliforniaPeggy]

9. First, she has to win...and I believe her poll #'s are down.

Here's what the editorial has to say:

A new governor or attorney general might want to appeal, but by January, when the new crop of state officials is seated, the filing date will have long passed, and it is hard to see how they could intervene at that point. That means the appeal will be brought by "intervenors" — supporters of Proposition 8 who entered the lawsuit in the federal District Court to defend it.

So, it doesn't look like it...

[Ruby the Liberal]

16. Is that both the decision to lift the stay AND the decision to overrule Prop 8?

Thats what I wasn't clear on.

:hi:

[CaliforniaPeggy]

20. It seems to me that the decision to lift the stay will have been made.

This editorial looks to be about the decision to overrule Prop 8.

But I could be wrong!

:hi:

[david13]

33. Peggy, I sure do hope you are right. Not everybody likes Jerry

Brown, but hey, let us consider the alternative there. ???
dc

[CaliforniaPeggy]

34. Not everybody does, but I think most people do...

I expect him to win, and win big. Most people are tired of seeing how the Repubs have run the state into the ground, financially.

[Mz Pip]

10. From what the article said

by time Whitman gets sworn in it would be too late to file.

I do think that this will end up in SCOTUS, standing or not. It doesn't matter how flawlessly Walker's ruling may have been, if people with some power want this heard it will be heard. I don't see the reactionary haters just giving up their fight no matter how hard they were smacked down.

[Ruby the Liberal]

19. That was what I was unclear on

whether it was the decision on the stay or the decision on Prop 8 or both.

[kestrel91316]

13. She could try. She would fail. There IS NO CASE against Prop 8.

[Ruby the Liberal]

18. Heya Kestrel

:hi:

I for one am hoping this goes to SCOTUS so that we can get it settled once and for all and avoid ~40 more state dramas about it. Walker really boxed Kennedy in while writing his opinion.

[kestrel91316]

24. So am I. I recently found about 8 long-lost second cousins on Facebook

and TWO of the eight are gay (one male, one female) in happy, committed relationships in states where they cannot marry. I want them to be able to if they wish. It's PERSONAL now.

[Ruby the Liberal]

26. It is even bigger than that, IMO

Taxation benefits, Estate Planning without probate, Hospital visitation and medical decisions, etc....

[kestrel91316]

11. Prop 8 underwriters to put up a straight fundie couple to claim their

marriage fell apart because of their gay neighbors' marriage in 3....2....1....

I'm not saying anyone with half a brain would BUY that, lol, just that it is undoubtedly one of the tricks they have up their sleeve.

[CaliforniaPeggy]

14. I'm sure they're thinking that.

Even though we know it won't do them any good.

[WCGreen]

15. Good Catch there Peggy...

A good and informative OpEd....

[CaliforniaPeggy]

17. Thanks, Chris!

He doesn't write nearly often enough for me.

[unblock]

23. question regarding the history of gay marriage:

why did this issue only just gain national attention in the last few years? i realize a few states and cities explicitly allowed it, then a few explicitly said they wouldn't recognize gay marriages from other states, and then a few states explicity denied gay marriage.

but had there never been a case before all this where a gay couple tried to get married and were rejected?
if there had been a case earlier, what was the courts' view at that point?

[CaliforniaPeggy]

25. Those are great questions, and I have zero answers.

Hopefully someone else will come along who does know.

I suspect that a critical mass is being reached, in terms of national attention.

[david13]

31. I think the way to answer that question is to go back and look at the

legal and social attitude toward homosexuals, and homosexual conduct as a historical context.
Discrimination is far too soft a word for the history.
It's like an age of enlightenment has started some years ago.
Not too long ago, extra marital sex, carnival knowledge with someone not your spouse, was, in many states illegal, against the law, a crime.
So you didn't necessarily trot down to city hall and ask for a marriage license if you were a gay couple.
They were in the closet for a reason. They could lose their job or anything, much more serious.
So look at the history.
dc

[DirkGently]

27. Good point. Goes to the heart of the issue, which is that gay marriage

doesn't harm the people opposing it. Or anyone, for that matter. That's what should have prevented the ban in the first place.

[Grimm]

28. So the US doesn't have public interest standing?

I don't know much about US law, but in Canada, we have the same (or at least a similar) standing rule as the one in the article, but there's also a special form of standing to bring a case for the public interest.

It's a test with a high threshold to pass, but in a nutshell, as long as there's a serious issue, the person bringing the case has a genuine interest (i.e. can demonstrate a long-standing interest) and they are best positioned to bring the case, then the court may grant a non-directly affected party standing to bring a case.

[david13]

32. The public interest standing would generally be asserted by

the top legal authority of the state where the Prop is at issue. In California, that top legal authority, the Attorney General, is the one time governor and again gubernatorial candidate, none other than ... Jerry Brown. And he ain't gonna pursue it. He came out last week and said, hey (he talks real hip like) hey, let the same sex couples marriages begin again, as did the governator, the Terminator, Arnold, Everybuddy Luv Ahnold Swartenegger.
But public interest in doing something evil, like discriminating against a class etc., like gays, or people of a certain race, color or creed, cannot be upheld by a court with any conscience, whether everybody wants it or not.
Ergo.
dc

[pinboy3niner]

29. A happy circumstance, Peg!

Not predictive of what may happen in this case, but it doesn't leave a lot of wiggle room (of course that's rarely a problem for lawyers, lol).

But even if Prop 8 supporters were to be recognized as having standing, Judge Walker's well-thought-out, comprehensive opinion seems pretty hard to overturn. As much as we rail against the "PTB," somehow we manage, despite all odds, to make human progress...

[Turbineguy]

30. Irony

It's kind of like goldy.