Thursday, September 9, 2010

Understanding "Standing" in the Proposition 8 California Same-Sex Marriage Appeal: Part One

by Vikram David Amar and Alan Brownstein

September 8, 2010

Over the next few months, the U.S. Court of Appeals for the Ninth Circuit will take up an appeal that is being brought by the sponsors of Proposition 8 (the California initiative banning same-sex marriage) to undo U.S. District Court Judge Vaughn Walker's ruling, made after a long trial, that the initiative violates the Fourteenth Amendment of the U.S. Constitution. When the Ninth Circuit begins its work, the first question the appellate judges will consider is whether the folks trying to preserve Proposition 8 are appropriate parties in the case -- that is, whether anyone who favors Proposition 8 has "standing" under the Constitution and relevant laws to defend the initiative measure in federal court.

If the Ninth Circuit determines that no defendant (other than the Attorney General and Governor, who have both declined to defend the initiative in either the trial or appellate court) has standing, then the appeal will be dismissed. If that happens, the findings and opinion resulting from the trial conducted by Judge Walker will also likely be erased. This is so because if the only defendants who had constitutional standing in the trial court (the elected executive officials) chose not to defend the measure, then the trial that took place was not a product of a live "case or controversy" under the Constitution; it was, instead, a trial between appropriate plaintiffs on one side and invalid parties -- the Proposition's sponsors -- on the other side. And the results of such a contest where only one side is properly represented cannot be afforded legal respect or significance.