Last week was a very important week for gay marriage rights. At some point this week, Judge Walker is supposed to address the issue of a stay on same-sex marriage in California pending the appeal to the Ninth Circuit. Actually, it turns out that I may not finish this post before he rules. In all of the excitement of the ruling that Prop 8 violates both the Ninth Amendment's non-enumerated rights clause and the 14th Amendment's equal rights and protections clause, I forgot one major Constitutional hurdle that about 90% of the news media has conveniently forgotten. In order to appeal a decision, the group filing must have the legal standing to do so.
In Perry v. Schwarzenegger, two same-sex couples sued Governor Schwarzenegger and the California attorney general. Neither defendants sought to defend themselves in court. Thus, the Proponents of Proposition 8 stepped up to the table and tried quite amateurishly to defend it. They have filed an appeal to Judge Walker's decision. Which,
Yes, the Proponents of Prop 8 had the legal standing to defend it in federal court, but they almost definitively do not have the right to appeal - if for the very reason that the two named plaintiffs in the case did not file an appeal. In fact, they hold the opposite view. They joined with the plaintiffs to petition that the stay on same-sex marriage be lifted, allowing California become (again) the 6th state - and 7th US jurisdiction (District of Columbia) to grant marriage licenses to same-sex couples.
If Schwarzenegger or the attorney general (whose name is not even important enough for me to Google) - neither of whom are running for reelection - chose to bite the political bullet and appeal the decision (and allow Proponents of Prop 8 to provide their stellar defense - again, thanks for that) I would not think anything less of them. Besides, Schwarzenegger's legacy will be Terminator and Kindergarten Cop, not his two terms as governor.
However, there is a court precedence allowing the courts to rule even after throwing out a case due to a lack of standing. And I really can't believe that I'm about to cite it. In Dred Scott v. Sandford (yes, I just cited the Dred Scott decision), SCOTUS ruled that Scott lacked the legal standing to sue because he was not a citizen of the United States (because he was a slave). That would have been the end of a still-very wrong decision, but they didn't end there. They continued on to rule that slaves were property of their owner, and that those property rights do not end upon the owner relocating to a state that outlawed slavery. Considering many Constitutional scholars argue, rightfully so in my opinion, that the Dred Scott decision was the worst ever handed down by the Supreme Court, I doubt too many courts would use it. Its possible that there are other cases that could be cited, which of course would just cause the Right to cry foul even louder than they already are. It is also possible that there are more political nuances than I am reading into it. The lawyers for the plaintiff both argue that the case is bound for SCOTUS, so maybe they know something I do not. Especially since one is a neocon golden boy.
Long story short, I believe that Judge Walker will lift the stays on same-sex marriages in California, and the Ninth Circuit Court of Appeals will throw out the appeal to Perry v. Schwarzenegger, ending a case that I've already seen extensive breakdown as to how each Supreme Court justice will vote. The consensus is 5-4 (go figure) with Justice Kennedy casting the deciding vote. All a moot point if the appeal is thrown out.
On a related note, there are only a few days left before Hubby and I get legally married in DC. I began planning last night. Go me.
ADDENDUM: Just read Baker v. Nelson (1972). SCOTUS dismissed the case in which a same-sex couple sued for the right to apply for a marriage license "for want of a substantial federal question." Plaitiffs argued in Perry v. Schwarzenegger that Baker no longer applies due to subsequent court decisions. Also, Proposition 8 was a state law, not federal, meaning that Baker v. Nelson does not apply as precedent. This is what I get for reading National Review. They raised a doubt in my mind by citing an obscure precedent. Which is not really a precedent because SCOTUS dismissed the case (and therefore did not rule on it).
