Ever since long before Judge Vaughn issued his now-famous decision striking down California’s Prop 8 (and by extension of its logic, also striking down all state and federal anti-gay marriage statutes), it has been universally assumed that his decision would be only the first round in a process that would inevitably end at the Supreme Court.
That assumption could be wrong. The case might already be over, because the proponents could lack standing to appeal.
I was skeptical when I read the headline, but the two cases cited by the appellees seem dead on point to me.
Justice Ginsburg wrote: “An intervenor cannot step into the shoes of the original party unless the intervenor independently fulfills the requirements of Article III.”
Prop 8 was a referendum, not a statute passed by the legislature. The proponents of Prop 8 were therefore not the defendants, the state of California (personified by Gov. Schwarzeneggar) was. And the state of California chose not to defend the case at trial and certainly has no intention of appealing Judge Vaughn’s decision. Prop 8 proponents were intervenors, allowed by Judge Vaughn to stand in the stead of the state at trial. That was a discretionary act by the judge and the higher courts are not bound to continue to honor it on appeal. Thus, at the point that the state of California chooses not to appeal, Prop 8 proponents may have no legal basis to continue the case. In order to continue, they would have to show that they were personally damaged by the Judge’s decision, which may be difficult.
It is possible that Prop 8 proponents could have standing on the basis that Vaughn’s overturning of their ballot initiative is a harm to their rights to enact valid changes to the law by ballot. Alternatively, they could concoct standing for a new case by creating a new ballot initiative which would be rejected by the Secretary of State on the basis of Judge Vaughn’s decision, creating a new issue for a new case and a new appeal (after a very swift trial court decision) with no standing problem (since they now would be original parties, not intervenors).
Whatever the outcome, however, this turns out to be a risky argument for the appellees to make, as it risks dramatically limiting the reach of their victory:
On the one hand, that would be fortunate for those who want to marry in California. On the other hand, it means that Judge Walker’s decision remains merely a trial court ruling and order, with no precedential authority beyond the state of California. For those who think that Walker’s very persuasive decision can survive appellate review, this may seem like a lost opportunity to achieve a regional (9th Circuit) or nationwide precedent that could then be used to attack similar amendments in more than 30 states.
At the end of the day, this very clever legal argument might be too clever by half, as it transforms a sweeping legal victory to a much smaller one.
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