How “Standing” May Doom Proposition 8

by Paul Hogarth on August 19, 2010

In March 2004, my law school hosted a debate between Shannon Minter of the National Center for Lesbian Rights and a right-wing lawyer from the Alliance Defense Fund. Gay marriages were happening at City Hall, and the ADF had sued the City – on behalf of 3 San Francisco residents – for defying state law (the State had its own lawsuit.) As a first-year student taking Constitutional Law, I had just learned that plaintiffs need “standing” to sue – and that to prove standing, one must have suffered an injury. “How have your three clients,” I asked naively, “been injured?” The lawyer shuffled his papers for about five seconds, and then replied: “I can’t comment on pending litigation.” Six years later, Judge Vaughn Walker has overruled Prop 8 in Perry vs. Schwarzenegger – and the State of California is not appealing the decision. Now, right-wing proponents may be out of luck – because they can’t prove marriage equality would actually harm them. If the Ninth Circuit agrees that they lack standing, justice will prevail.

Earlier this week, the Ninth Circuit Court of Appeals stayed Judge Walker’s ruling – so we won’t see happy California couples heading to the chapel for at least the next few months. But they set a pretty ambitious briefing schedule – and one section, to me, stands out in their order: In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing, See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997)

I went back and read Arizonans for Official English, a unanimous decision by the U.S. Supreme Court – authored by Justice Ruth Bader Ginsburg. And the facts in that case are remarkably similar to what we have here. In 1988, Arizona voters by a slim majority passed a ballot measure requiring that English be the official language. After civil rights activists successfully challenged it in District Court for violating the U.S. Constitution, the Governor of Arizona decided not to appeal – leaving its right-wing proponents (who had intervened in the case) to appeal. The Supreme Court said they didn’t have standing to appeal the case, because they would not suffer an actual injury.

It warrants quoting directly from the Arizona case, to see what Prop 8 supporters now must address as they hope to block gay couples from getting married: “Standing to defend on appeal in the place of an original defendant, no less than standing to sue, demands that the litigant possess ‘a direct stake in the outcome.’ The decision to seek review is not to be placed in the hands of ‘concerned bystanders,’ persons who would seize it as a ‘vehicle for the vindication of value interests.’ An intervenor cannot step into the shoes of the original party unless the intervenor independently fulfills the requirements of Article III. [which included suffering an actual injury.]”

In his order last week lifting a stay on his court decision, Judge Walker even mentioned that the only parties suffering an actual injury are gay couples who can’t get married. “Proponents [of Prop 8],” he wrote, “have not alleged that any of them seek to wed a same-sex spouse.” They may oppose gay marriage, but what do they stand to lose?

Of course, this has always been the dirty secret among opponents of marriage equality – and it’s something that “Yes on 8” campaign manager Frank Schubert figured out very early on in 2008. After the California Supreme Court granted marriage equality in May, Schubert knew that they could not win in November if the election was framed around the right of gay couples to marry. As he later told a conference of political consultants, their focus groups showed that voters felt gay marriage had no effect on their lives. Only by persuading swing voters that there were “consequences” would they win the election.

So we saw Prop 8 ads arguing that gay marriage would be “taught” in public schools – which was the most effective reason why our side blew a seventeen-point lead. As the most comprehensive study done after Prop 8 has shown, these ads were most effective at turning young parents with children away from marriage equality – which doomed the campaign. One year later, we saw Frank Schubert escalate the scare tactics in Maine – from gay marriage in public schools, to “gay sex” in schools, forever obfuscating and confusing the issue.

The Prop 8 trial was historic, because it was the first time we saw a full-blown trial on gay marriage. Beyond constitutional arguments, our opponents had to back up their claims with facts. They failed, and the most lasting impact of Walker’s decision will be his 80 findings of facts – conclusions that weighed the evidence and cannot be reversed on appeal.

Just like Prop 8 supporters failed to back up their claims in trial, now they are being asked to explain a more basic question – how giving committed, same-sex couples the right to marry gives them the standing to sue. And if we need to remind them about Judge Walker’s solid decision, moral disapproval of gays is not a “rational basis.”

Paul Hogarth has a J.D. from Golden Gate University. He is an attorney licensed to practice law in California, but this piece is not intended as legal advice. He was a summer intern for Equality California in 2005, organized volunteers in 2009 for the “No on 1” campaign in Maine, and has helped live-blog the Prop 8 trial for the Courage Campaign.


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