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

Anti-Gay Notre Dame Law Professor Questions Impartiality of Judge In Same-Sex Marriage Case

Notre Dame law professor Gerard Bradley published an op-ed on Foxnews.com, which challenges the impartiality of Judge Vaughn Walker. Walker is the federal judge who ruled yesterday that California's prohibition of same-sex marriage violates the Constitution. Walker is also gay.

According to Bradley, the media should discuss Walker's sexual orientation. Although Bradley does not argue that Walker should have recused himself from the litigation, he strongly implies that his sexual orientation makes him partial.

Bradley argues that:

The neglected bias in the Prop. 8 trial has instead to do with the fact that – as reported in The Los Angeles Times last month – Judge Walker “attends bar functions with a companion, a physician.”

If (as The Times suggests) Judge Walker is in a stable same-sex relationship, then he might wish or even expect to wed should same-sex marriage become legally available in California.

This raises an important and serious question about his fitness to preside over the case. Yet it is a question that received almost no attention.

Bradley's argument is preposterous. White judges decide racial discrimination cases brought by persons of color. Men rule on abortion and sex discrimination cases. Heterosexuals -- including openly anti-gay Justice Antonin Scalia -- rule on gay discrimination cases. If sexual orientation makes a judge partial, then no judge could hear a case related to sexual orientation discrimination -- because every judge has a sexual orientation.

Coincidentally, when President Carter appointed two black judges to the federal bench -- Judge A. Leon Higgonbotham and Judge Constance Baker Motley -- both faced recusal motions in discrimination cases. Both refused to view race and sex as a source of bias.

Bradley Is The One Who Is Truly Biased
Finally, Bradley does not reveal his own biases. Bradley has written commentary opposing same-sex marriage and equality for gays and lesbians. In a 2003 essay published in the National Review, Bradley makes the following arguments against same-sex marriage:

Our civil law has always treated traditional marriage as reflecting objective truths about human sexuality, procreation, and the family. Some people deny these truths. . . . [M]arriage depends for its health partly on sound laws that protect, maintain, and support it.

The task of conservatives in the coming showdown is to justify, not marriage qua marriage (almost everyone, gay and straight, agrees that marriage is a good thing), but the characteristic at its core: its intrinsic gender complementarity — one man and one woman, period. . . .

The answer is that homosexual acts are not and never can be marital. Sodomy has been discouraged, and sometimes prohibited, for basically the same reason that fornication and adultery have been: to protect marriage as the principle, or litmus line, of sexual morality. Sex is for marriage, and marriage is (not coincidentally) the morally legitimate setting for bringing children into the world.

This passage shows that Bradley -- not Walker -- has strong biases regarding same-sex marriage.