Conservative Court Doctrine Could Doom Supporters of California Proposition 8

Judge Walker has temporarily stayed the enforcement of his injunction prohibiting California from enforcing Proposition 8 -- the controversial constitutional amendment that bans same-sex marriage. Walker recently ruled that Proposition 8 violates the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment.

Normally, the next step in a case like this would involve defendants seeking review by a federal appeals court. This case, however, presents a difficult procedural hurdle for proponents of Proposition 8 who wish to appeal Walker's decision.

Governor Arnold Schwarzenneger and Attorney General Jerry Brown are the named defendants in the litigation. As such, they are bound by the court's injunction. Schwarzenneger and Brown, however, have lauded Walker's decision and do not wish to appeal it. This is the source of the problem for opponents of same-sex marriage.

"Standing" Issue

In order to bring a case in federal court, litigants must have "standing" to sue. In order to have standing, Supreme Court doctrine requires that parties have an "injury in fact." This injury must be specific and concrete -- rather the speculative and abstract.

Furthermore, the Court has held that people who simply want to sue in order to express their ideological disagreement with government policy lack the requisite injury needed to confer standing. This rule could possibly doom supporters of Proposition 8.

Several organizations that oppose same-sex marriage wish to appeal the ruling, but they will have a difficult time meeting standing requirements. Their opposition to same-sex marriage is purely ideological. Same-sex marriage, however, does not harm the groups in any specific or concrete way.

Sweet Irony

Ironically, conservative justices on the Supreme Court have toughened standing rules, particularly in civil rights cases. The conservative standing doctrine has often prevented wronged parties from seeking redress for their mistreatment. Now, this doctrine seems to represent a major barrier for conservative groups that wish to contest Walker's ruling.

What Next?

If the organizations ultimately lack standing to appeal, then Walker's ruling will stand. Walker's ruling, however, will only affect the law in California (although other courts may later cite it as persuasive reasoning).

Furthermore, a ruling against the organizations on the standing issue would keep this case out of the Supreme Court. Many commentators (including Dissenting Justice) believe that the Supreme Court is not prepared to invalidate laws banning same-sex marriage across the nation. Accordingly, the standing issue could prevent the Supreme Court from making a conservative ruling that could take decades to overturn. This would probably represent the best outcome for proponents of same-sex marriage.

Update: Professor Vikram David Amar, a Constitutional Law scholar at UC Davis Law School, has analyzed this issue for FindLaw. See: Musings on Some Procedural, But Potentially Momentous, Aspects of the Proposition 8 Case As it Goes to the Ninth Circuit