Judge Walker Hints That the Prop 8 Case May Not Make It to the Supreme Court After All

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In the midst of Judge Vaughn Walker's ruling to lift the stay against gays getting married in California is written an interesting little warning to proponents of Proposition 8. The parties being sued in the case are California governor Arnold Schwarzenegger, Attorney General Edmund Brown, and a handful of other state officials — but these are not the people who represented the pro–Prop 8 in court; in fact, both Schwarzenegger and Brown refused to appear, and even issued statements urging Walker to lift his stay on the marriages. For the case to be appealed to the 9th Circuit, Walker points out, the pro–Prop 8 forces must prove they even have standing to argue on Schwarzenegger et al.'s behalf at that level. As private citizens who have nothing to do with the administration of marriage, it's not entirely clear that they will. According to Article III, Section 2 of the Constitution, to challenge the case non-named proponents must show that they have “suffered an injury in fact, which is fairly traceable to the challenged action and is likely to be redressed by the relief requested.” As he has said before, Walker doesn't think that any injury was proven during the trial.

Here's what he says about the standing (with case and document references redacted for the sake of non-lawyer readers):


When proponents moved to intervene in this action, the court did not address their standing independent of the existing parties. While the court determined that proponents had a significant protectible interest under FRCP 24(a)(2) in defending Proposition 8, that interest may well be “plainly insufficient to confer standing.” This court has jurisdiction over plaintiffs’ claims against the state defendants pursuant to 28 USC
§ 1331. If, however, no state defendant appeals, proponents will need to show standing in the court of appeals.

Proponents’ intervention in the district court does not provide them with standing to appeal. The Supreme Court has expressed “grave doubts” whether initiative proponents have independent Article III standing to defend the constitutionality of the initiative.

When proponents moved to intervene in this action, the court did not address their standing independent of the existing parties. While the court determined that proponents had a significant protectible interest under FRCP 24(a)(2) in defending Proposition 8, that interest may well be “plainly insufficient to confer standing.” This court has jurisdiction over plaintiffs’ claims against the state defendants pursuant to 28 USC § 1331. If, however, no state defendant appeals, proponents will need to show standing in the court of appeals.

Proponents chose not to brief the standing issue in connection with their motion to stay, and nothing in the record shows proponents face the kind of injury required for Article III
standing. As it appears at least doubtful that proponents will be able to proceed with their appeal without a state defendant, it remains unclear whether the court of appeals will be able to reach the merits of proponents’ appeal. 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 to ensure appellate jurisdiction.

Tricky, tricky! The full Stay Order is below.

Final Stay Order