JONATHAN CHAIT AUGUST 13, 2010
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Lyle Denniston thinks so:
From the moment nearly 15 months ago that two master legal tacticians, David Boies and Theodore Olson, launched the case of Perry v. Schwarzenegger, it was almost universally expected that it would become a historic Supreme Court test of gay marriage and the Constitution. Now, perhaps for the first time, it seems realistic to suggest that this particular high-stakes battle may never get much beyond California, especially in terms of its impact on the Constitution.
That prospect came into view Thursday as U.S. District Judge Vaughn R. Walker suggested that the appeal of his sweeping ruling against California’s Proposition 8 ban on same-sex marriage may end on what everyone but lawyers would consider a mere legal technicality. It might end, in other words, because no one with a right to do so would opt to take the case beyond Judge Walker’s San Francisco courtroom.
Make no mistake about it: there will be energetic efforts to keep the case going, initially through the Ninth Circuit Court (also based in San Francisco) and, perhaps, through the Supreme Court in Washington. But the fight, perhaps at every level, could focus on a concept that is anything but familiar to the average American. The legal label for this concept tells nothing about what it is, although hinting that it finds its origin in the Constitution: “Article III standing.” For the supporters of Proposition 8, “Article III standing” is probably not a legal arena where they want to be tested; the current Supreme Court’s majority does not have an expansive view of who can qualify for “standing.”
If the case does falter because of a lack of “standing,” Judge Walker’s 136-page opinion on August 4 against Proposition 8 would stand as a precedent, but one that represented the judgment of a single federal jurist, without the enlarging endorsement of a federal appeals court or of the Supreme Court. District Court rulings, even those that are widely admired within the legal community, do not have the compelling force behind them that a higher court’s decisions do.
It seems bizarre that such a major ruling could go unchallenged merely because, despite the many gay marriage opponents desperate to overturn the decision, nobody has legal standing to challenge it. On the other hand, it would be sort of fitting. The fundamental issue with gay marriage is that opponents have never been able to adequately explain who is hurt by letting gays marry. The concept of "standing" is about finding a person who is hurt by a ruling. There are no such people. Hence the basic justice.
16 comments
"The concept of "standing" is about finding a person who is hurt by a ruling. There are no such people. Hence the basic justice." As the sole proprietor of Bumper Stickers for Bigots, I can say with absolute certainty that if this case doesn't spend years grinding its way through the appellate court system, my business will be irreparably harmed.
- Fishpeddler
August 13, 2010 at 3:46pm
Be careful who you call a bigot. Some liberals, particularly older ones, are not on board with gay marriage and some conservatives most definitely are. An example of the former is a woman academic whose name I have forgotten but who wrote an article on gay marriage in the Public Interest a bit before its demise. An example of the latter is the New York Times columnist, David Brooks, who has written that we not only should allow gay marriage, we should require it. We are winning this battle and will continue to win it. Only a petulant ideologue would smear with a broad brush.
- liberal reformer
August 13, 2010 at 4:13pm
Good point, Lib Ref. Personally, I'm very careful about who I call a bigot. I reserve the term for bigots. OK, I've probably used the term on a chauvinist, but I've always struggled with the distinction between those two. And chauvinist seems like it should be someone who enjoys viewing French pre-historic cave paintings. Or would that be a Chauvetist?
- Fishpeddler
August 13, 2010 at 4:26pm
I love how people will backpedal when challenged on a point. You could easily be read as saying that anyone who opposes gay marriage is a bigot. Indeed, that is what I took away from your post. Now, you claim a different meaning, but still without delineating what "bigot" means to you in the context of this issue. A bravura performance, fish.
- liberal reformer
August 13, 2010 at 4:32pm
"Be careful whom you call a bigot," libref. What does a person's age, political leanings, or profession have to do with the question of whether her particular behavior reflects bigotry? If a person engages in behavior designed to deny the equal protection of the law to a class of her fellow citizens, that is the very definition of bigotry. If that is not bigotry, then the word has no meaning. Whether that person is elderly, or a liberal, or an academic has no bearing on the question. Now, I share your belief that it is impolitic to confront most people engaged in bigotry with the direct charge, "You, ma'am, are a bigot." Vinegar, honey, and flies. But it is not "smear[ing] with a broad brush" to imply in a joke that those who are engaged in actions that are the very definition of "bigotry" are bigots. They are - as are almost all of us at one time or another!
- rhubarbs
August 13, 2010 at 4:44pm
Lib Ref, I honestly am not even sure what you are talking about. Was your first comment supposed to be a criticism of mine? You were vague enough that I thought it had just inspired you to make a general point. Who exactly do you think that I was calling a bigot in my fictional business name I made for a joke? How could I be backpeddling from a position when I never TOOK a position? The past week or two I've noticed a lot of acrimonious debates on this site, and they seem to involve you more often than they've involved even the standard trolls like Mr. Rat. I've tried to not take sides because I apparently missed out on whatever it was that had you and Rhubarbs, for example, at each others' throats. Based on your recent comments like your one about people here not being able to read, or your two comments above, it's becoming clear why everyone else on this site seems to dislike you. It's because you're a dick.
- Fishpeddler
August 13, 2010 at 4:46pm
Oh, rhubarbs, I was just talking about you. Thanks for making an eloquent response on my behalf. I just resorted to name-calling (though, I did not use the word 'bigot'. I'm very careful about who I call a bigot).
- Fishpeddler
August 13, 2010 at 4:50pm
Fishpeddler, I love your original joke about Bumper Stickers for Bigots and "Personally, I'm very careful about who I call a bigot. I reserve the term for bigots." Great lines both. I confess that I've let libref get to me lately. I can't stand a bully, and lately libref has engaged in a campaign of childish bullying against basically everyone who comments here. It's one thing to disagree with everyone else, but quite another to insult them as "inferior" to others, which lately has been the sum total of libref's contributions. But in responding, I have fallen shamefully short of the fundamental rule of the internet: Don't Feed the Troll.
- rhubarbs
August 13, 2010 at 5:18pm
OMG, barb. There are people who can be reasoned with and those who can't. That is the primary distinction; do you nee a tutorial on this, as well as everything else? Also, while I have the floor I just want to say what a fraud you are. You don't engage me honestly, you distort and dissimulate. You cited my use of the term "intellectual inferiors" to make it look as though I was comparing myself to commenters out here, when in actuality I utilized that term to compare J. Chait - and other fine TNR writers - to you and rationale and other pygmies who fancy themselves smarter than Chait. You are every bit as shameless a hack as are Andrew Breitbart, Rush Limbaugh, Glenn Beck, and Sean Hannity. And fish, you want to fling the term "bigot" around, without at all defining who you include in and who you include out. When challenged, you say you are careful about who you call a bigot, but no such care was exercised. To invoke that mantra is not to live it. It seems very much like you want to gleefully hurl the term bigot around, without the courage to back it up with a hard definition. Not even when challenged have you done so.
- liberal reformer
August 13, 2010 at 5:30pm
Hate to interrupt the fun, but this retired lawyer finds the notion that standing will be the end of this case comical.
- lsernoff
August 13, 2010 at 7:29pm
lsernoff, I would be interested in hearing more about why this interpretation of standing is incorrect.
- zardoz67
August 13, 2010 at 7:56pm
Sadly, I have to agree with isernoff. I think it would be just if the courts held that no one had standing, but the doctrine is one that is not so hard and fast, routinely manipulated by courts to achieve a substantive outcome on nominally procedural grounds. As well, I vaguely recall an exception that says that, in a case where no particular individual is well-situated to assert a collective claim, that most anyone can do so.
- roidubouloi
August 13, 2010 at 9:02pm
Actually, the standing issue came up a lot in early environmental cases. It was ultimately held that environmental organizations could bring these actions without being able to claim a particular harm because, as in the gay marriage case, there is often no one who can assert particular harm. Rather than rule that these cases couldn't be brought, the courts addressed it with the practical question of whether the particular environmental organization was a good representative for the interest at stake. I don't know if anyone bothers to raise the standing issue in this context any longer as this is no well established. There are dozens of cases in the name of the Environmental Defense Fund, etc., etc. In this case, one could argue that no one is harmed, but the citizens of California will be found to have an interest in the effectiveness of their constitutionally mandated referendum process. Someone will be allowed to attempt to vindicate that interest if the court is satisfied that the representative is not a ringer, actually trying to lose the case to win it on behalf of gay marriage.
- roidubouloi
August 13, 2010 at 9:09pm
roidubouloi: "I vaguely recall an exception that says that, in a case where no particular individual is well-situated to assert a collective claim, that most anyone can do so." "Actually, the standing issue came up a lot in early environmental cases. It was ultimately held that environmental organizations could bring these actions without being able to claim a particular harm because, as in the gay marriage case, there is often no one who can assert particular harm." It's the other way around, at least in federal court. The Supreme Court ruled in Sierra Club v. Morton (http://en.wikipedia.org/wiki/Sierra_Club_v._Morton) that the Sierra Club did not have the right to sue to block a forest development it didn't like. It could sue on behalf of a member who used the forest and would be affected by the development (which it then did, I believe). I was at the Arizonans For Official English v. Arizona Supreme Court argument in 1996 which more closely parallels the current case. Arizona's "official English" law was passed by voter initiative. The state lost at trial, and the governor who didn't like the law anyway wasn't interested in appealing. So Arizonans For Official English, one of the groups that organized to get the measure on the ballot, petitioned to intervene for the purpose of appeal and was allowed to do so by the 9th Circuit. They said that since they worked to get the measure on the ballot, it gave them a particularized interest different from the average citizen. The Supreme Court granted cert on the First Amendment question, but added two procedural issues: did appellants have standing to appeal, and was there still a case or controversy (since the plaintiff had left state employment and had received only $1 in nominal damages). The argument was totally consumed by the procedural issues. The Court disposed of the case on the lack of a case or controversy, concluding that $1 in damages was not enough to keep the case alive. But the Court also said it had "grave doubts" that AOE had standing to pursue appellant review. See pages 64-66 at http://supreme.justia.com/us/520/43/case.html. Indeed, I can't recall a single Justice at the argument who seemed to think AOE had standing. The AOE language is technically dicta, but it's pretty strong dicta. If the state chooses not to appeal, it looks like the Prop 8 proponents are going to have a tough time without coming up with someone who can show a particularized harm. If so, then the federal case would end with the trial court decision.
- dsimon
August 13, 2010 at 9:41pm
As I recall, back in the '70s, the FCC lost the Pacifica case (the so-called Seven Dirty Words) in the DC Circuit. By then there was a Democrat in the White House, and consequently the Commission and Justice Department had become more liberal and chose not to appeal. The Supreme Court's majority wanted to reverse, however, so they took the case, appointed someone to act as appellant, and, by 5-4, did so. Note that liberal heroes Stevens and Blackmun joined their Nixon-Ford colleagues Burger, Powell and Rehnquist in ruling for censorship. I wouldn't put it past the current Court to do likewise.
- henderstock
August 16, 2010 at 6:29pm
I wouldn't call someone opposed to gay marriage a bigot, ipso facto. (I favour gay marriage, but never mind.) I can imagine someone having deeply ingrained, traditional notions of marriage, whether religiously rooted or not, as a heterosexual union. Some such person might for instance favour civil unions. In fact, this reasoning--anyone opposed to gay marriage is a bigot--makes Obama a bigot.
- basman
August 18, 2010 at 1:24am