Get Up, Stand Up: Standing and the Prop. 8 Trial

I thought there was something farcical about adjudicating marriage and voter intent through the prism of a bench trial in a San Francisco Federal Court as a means of deciding whether there was H8 involved in the Prop. 8 vote. But the post-trial maneuvering has really elevated things to a sort of meta-farce. Judge Walker has refused to stay his ruling pending appeal in part because the defense lacks standing to appeal in the first place Then, what the hell was the trial for?

Walker, in his own 11-page decision released Thursday at 12:35 p.m., again offered a scathing critique of Prop. 8 and the evidence its proponents offered during a nonjury trial in January.

Walker said the stay should be lifted because the ban's supporters had not shown how allowing same-sex marriages to proceed would damage them or the state. Walker also said that proponents of the ban, which voters approved two years ago, had not demonstrated that they were likely to prevail on appeal.

Moreover, Walker noted, the state did not defend Prop. 8. Instead, private organizations stepped in - but they might not have standing to appeal.

"It appears at least doubtful," Walker wrote, "that proponents will be able to proceed with their appeal without a state defendant. ... In light of those concerns, proponents may have little choice but to attempt to convince either the governor or the attorney general to file an appeal."

That likelihood is less than slim: Opponents of Prop. 8 were joined in their request that the stay be lifted by Gov. Arnold Schwarzenegger and Attorney General Jerry Brown.

While this might seem overly technical and legalistic to non-lawyers out there, it really isn't. "Standing" simply refers to whether a litigant has the right to appear in a particular lawsuit. If the lawsuit's adjudication would affect some concrete legal right of yours, then you have standing, simple as that. Standing is often difficult to establish, especially in cases involving the government's acts or failures to act. Just being a taxpayer or supporter of a particular policy is insufficient. The Prop. 8 defendants had standing because they were part of the group that got the measure on to the ballot.

Judge Walker's position seems to be that the Prop. 8 defendants had standing to conduct a defense at the trial level, but are unable to appeal the trial court's decision. This is a surprising position and one that I have never previously been aware of. I mean, you either have standing or you don't. If you don't have standing to appeal, then you shouldn't have had standing to appear at trial either. Frankly, I can't understand why Judge Walker is taking this position now. He's put a lot of effort into overturning Prop. 8, but if the appellate court and/or the US Supreme Court agree that the defendants lack standing, that means the trial - and its result - is a dead letter, and proceedings need to begin anew.

Why is this even an issue, you ask? Well, one of the most underreported facts about the Prop. 8 trial - right up there with the "open secret" that Judge Walker is gay - is that the people who appeared as defendants at trial were not named as defendants in the lawsuit. The "real" defendants were The Governator and State Attorney General Jerry Brown. Normally, when a state law is challenged in court, the AG is supposed to defend the law. I say "normally" because that is not what happened here. AG Brown and the Governator did not respond to the lawsuit and played no part in the defense. The Prop. 8 defendants appeared through a procedural rule known as intervention, by which a third party can join a lawsuit if they can show their rights are being adjudicated. Judge Walker allowed the Prop. 8 proponents to intervene, which is why they, and not the State of California, were in Judge Walker's courtroom defending state law.

If you are out there thinking, "Geez, the fix is in!" well...I am not going to denigrate the work of a federal judge. But, I will say this: when I was in law school between 2004 - 2007, it was screamingly obvious that obtaining a constitutional right to gay marriage was The Cause among the legal left in the academy and in government. It never seemed to be far away from the discussion, especially in classes like Constitutional Law, Community Property, and Wills & Trusts. Special care always went into discussing "landmark" gay rights cases like Romer v Evans and Lawrence v Texas. And, of course, there was a never-ending supply of clinics, speakers, and discussion groups on the topic of gay marriage.

That the state attorney general would refuse to participate in defending a lawsuit attacking California law is highly unusual - Jerry Brown took the legal equivalent of a dive - but, of course, he would take such an action on behalf of gay marriage. Now, he's refusing to join the appeal, and Judge Walker seems to be playing along with his declaration that only Jerry Brown and The Governator can appeal. Nice work, if you can get it. Oh, and could someone please bring this up as a campaign issue? Because right now Jerry Brown is running around trying to convince people he is not a flaming liberal.

I don't think gay marriage will mean the End of Western Civilization, nor do I think it will represent the End of Marriage. No-fault divorce (not to mention hetero-antics like Las Vegas weddings and three-time divorcees) did a lot a more to rot the institution. But, if gay marriage is going take its place in the legal firmament as a constitutional right, then it's going to need a lot more than cheesy procedural maneuvering by judicial activists searching for a result, rather than the law.

UPDATE: Oh, brother. Turns out, there was a state entity that tried to enter the Prop. 8 case as a defendant. Imperial County made a motion to intervene back in December, but Judge Walker did not rule on the county's motion until last week on the same day he issued his ruling overturning Prop. 8. Not surprisingly, he denied the motion. As an added benefit, there were no pesky state defendants who might have met his peculiarly narrow definition of standing on appeal. Ed Whelan has the gory details.

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