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Posted by on Feb 16, 2011 in At TMV | 0 comments

California Supreme Court Takes Up Proposition 8 Standing Issue

The California Supreme Court has voted unanimously to decide the issue of who has the standing to defend Proposition 8. This move is in response to a request from the Federal 9th Circuit Court of Appeals on the subject.

Without getting too deep into legal doubletalk, the issue stems from the fact that when Proposition 8 was challenged in the courts neither Governor Schwarzenegger or Attorney General Jerry Brown were willing to defend the it. In essence the opponents sued the state of California and the state did not respond to the challenge. In a civil case when this happens the court would enter a default ruling in favor of the party who filed the lawsuit.

However a coalition of Proposition 8 supporters did step up to defend Proposition 8 and they were also joined by some local officials, most notably officials from Imperial County.

The key issue is that in order for the case to go to federal court you have to have what is called Article III standing, which means that you satisfy one of the conditions set out in Article III of the US Constitution.

In essence you have to have some sort of real actual injury, rather than just a theoretical one. So if you are actually harmed by a polluting power plant you have standing but if you just worry you might be harmed in the future you do not have standing.

Two key US Supreme Court Cases on this topic are Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), and Diamond v. Charles, 476 U.S. 54 (1986).

In Diamond the state of Illinois chose not to defend a 1975 law that restricted access to abortion so a pro life/anti abortion doctor sought to do so. The law placed restrictions on abortion access. The doctor sued claiming that he was a doctor with moral objections to abortion and that his daughter might be able to get one without his consent.

The court ruled he did not have standing because he had not suffered any actual harm.

In the Arizona case a state employee sued to strike down the English only law on the grounds that as a state employee she had to enforce the law and being Hispanic the law impacted her directly.

Initially the courts ruled that she did have standing, but when she left her job with the state the Supreme Court decided that she no longer had standing and that others could not step in on her behalf.

In this case the basic argument is that those suing have suffered no real harm, other than personal moral objections, and thus they do not have standing.

If the State Supreme Court finds that the do not have standing then the Federal court would likely dismiss the case and make no ruling on the issue. This would mean that the original ruling by the District court would stand and Proposition 8 would no longer be defended in California

If they rule that they do have standing then we are looking at a probable appeal all the way to the US Supreme Court, which could determine the status of marriage equality nation wide.

My guess is that the State Court will in fact rule that there is no standing. At this point the supporters of the law have even tried to claim that they are acting on behalf of same sex couples who might be harmed if the law is enforced then reversed, which is beyond silly.

Oral arguments could happen as early as September, given the drawn out process of courts this is actually fairly quick.

In either case it looks reasonably good for supporters of marriage equality. If they rule no standing then Proposition 8 is gone and the largest state in the union recognizes the right. If the rule there is standing then it could open things up nation wide.