Breaking News on California Same-Sex Marriage Court Appeal

Ken Klukowski
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Posted: Aug 16, 2010 7:30 AM

Good news, and then some maybe-terrible-maybe-fantastic news, on the big California same-sex marriage case.

First the unmitigated good news. The Ninth Circuit federal appeals court has put a stay on Chief Judge Vaughn Walker’s decision in the district court which struck down California’s definition of marriage as one man, one woman.

It was extremely disappointing that such an appellate stay was necessary. Chief Judge Walker should have stayed his own ruling, well aware of the explosive nature of his decision. This is exactly the sort of case where an extremely-controversial decision should be put on hold while the appeal is underway.

But nor was his decision surprising. In keeping with the activist nature of everything else the judge did in this case, he tried to ram it into effect.

So this is good. The circuit court signaled it doesn’t enjoy having anyone try to force its hand by putting the district court decision on ice until the appellate court can consider this appeal.

Now some news that might be great, or might be terrible.

The Ninth Circuit is requiring the appealing party in the Perry decision, a group of intervenors in the case acting under the name of the lead intervenor, Dennis Hollingsworth, to explain why they have standing to pursue an appeal. They direct the lawyers’ attention to a 1997 SCOTUS case, Arizonans For Official English v. Arizona, instructing the legal team to explain why they have standing in light of that SCOTUS precedent.

Article III of the Constitution declares that the power of the federal courts only extends to deciding actual cases. In order for a lawsuit filed in court to be a “case” under the Constitution, one of the requirements is that a party must have standing. Without getting into the weeds, standing requires a plaintiff to have suffered an actual, personal injury, that is fairly traceable to the defendant, and that a court can remedy by granting the requested relief.

Without parsing the legal details, this 1997 SCOTUS case might be okay for Hollingsworth, or it could weigh against them.

This could be a huge problem. If the intervenors are found to lack standing, then the Ninth Circuit will dismiss the appeal and this case will become settled law. In other words, if the Ninth Circuit holds that Hollingsworth lacks standing, then this case is over. Only the State of California definitely has standing to appeal a federal court decision striking down part of the California Constitution. In an appalling betrayal of their oaths of office, the elected leaders of California have made clear they will not defend their own state constitution in court.

So if the appeal is dismissed, same-sex marriage will become permanently legal in northern California.

But that could also be a blessing in disguise. This decision was issued by the U.S. District Court for the Northern District of California. That court only has jurisdiction over part (roughly one-quarter) of California. The lawyers who brought this case, Ted Olson and David Boies (who are, unfortunately, an extremely-capable legal team) wanted this case to go all the way to the U.S. Supreme Court, hoping to get the Court to declare a federal constitutional right to same-sex marriage.

If this case is over, then its decision only applies to northern California. It can’t even be extended statewide in California, to say nothing of the rest of the country. So if this case is over, the supporters of same-sex marriage could be back to square one. It could be years before such a case reaches the Supreme Court.

Of course, what will the Supreme Court look like when that case does arrive? Do we want to have this fight now, or later? Do we have five votes to win right now? If so, then the time for us to want the Court to decide this issue is now.

But no one knows which side has five votes on this issue.