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Wednesday, April 7, 2010 as of 11:14 AM ET

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Lee Ross

Supreme Court

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Will the Prop 8 Case End on a Technicality?

August 14, 2010 - 12:20 PM | by: Lee Ross

The flurry of filings from California in the past couple of days suggests the issue that may determine the immediate and perhaps ultimate fate of that state’s invalidated law banning gay marriage will have nothing to do with who can stand at the altar but rather who can stand in a courtroom and defend the measure.

Next week, the Ninth Circuit U.S. Court of Appeals is expected to rule on whether a temporary stay of Judge Vaughn Walker’s ruling overturning California’s ban on gay marriage should be extended. The court’s decision will either temporarily re-open the marriage process for California’s gays or leave the prohibition in place until the Ninth Circuit can more fully hear arguments on the merits of the case, which would not take place until next year.

A major factor that could ultimately upend the litigation is whether the supporters of the law, known as Prop 8, have the legal right or standing to appeal Judge Walker’s decision.

In short, it’s possible the judges of the Ninth Circuit may affirm Walker’s ruling without ever reviewing the trial court record.

Standing is a legal doctrine with roots in the Constitution’s Article III that requires a plaintiff to show harm or injury. “Essence of standing is that no person is entitled to assail the constitutionality of an ordinance or statute except as he himself is adversely affected by it,” explains Black’s Law Dictionary, an authoritative legal guide.

In making its determination to extend the stay, the judges of the Ninth Circuit must first determine if the Prop 8 supporters can show they will be harmed if Walker’s ruling takes full effect. In other words, will they be injured if gays are allowed to marry? The measure’s supporters argue that state law precedents give them the standing right to challenge Walker’s decision. “California courts have repeatedly allowed proponents to intervene to defend initiatives they have sponsored,” lawyers for the Prop 8 defenders argued in their brief to the Ninth Circuit.

But not everyone shares that view.

Lawyers for the gay couples who are defending Walker’s ruling point to a 1997 Supreme Court decision which cast “grave doubts” on the courtroom rights of ballot initiative supporters. They argue that Prop 8 backers lack standing to file an appeal and note that none of the state’s key lawmakers (i.e. Governor Arnold Schwarzenegger or Attorney General Jerry Brown) who normally have standing to file suit have done so.

“Proponents cannot prosecute this appeal on their own because, as the district court found, ‘nothing in the record shows proponents face the kind of injury required for Article III standing,” lawyer Ted Olson wrote in his brief submitted to the court Friday. Olson even took a shot at the opposing lawyers saying the five pages they dedicated to addressing the standing issue is “an unmistakable sign that Proponents themselves recognize the jurisdictional flaws in their appeal and powerful proof that they do not have a ’strong’ chance of winning on appeal.”

Prop 8 supporters argue there is no obstacle to the standing issue and explain the Supreme Court’s 1997 ruling was based on an interpretation of Arizona law that didn’t allow for the type of legal challenge available to them under California law. They defend the California protection as fundamental to the ballot initiative process giving proponents a special interest to litigate disputes above and beyond that of an ordinary person.

Officials from San Francisco submitted their own brief to focus on the standing question and say the Prop 8 backers have misinterpreted California law. “[T]here is nothing in state law or in the cases cited by [Prop 8 supporters] to suggest that California permits initiative sponsors to step into the shoes of the Attorney General to represent the interests of the State of California,” wrote Therese Stewart, a lawyer for the city of San Francisco. The city contends allowing people to file lawsuits in place of high-ranking state officials is opening the door to legal chaos.

If the Ninth Circuit rules against the Prop 8 backers on the standing issue it’s possible that officials in Imperial County could lead the challenge in defending the law. One of those officials is Deputy County Clerk Isabel Vargas who is responsible for issuing marriage licenses. Prop 8 supporters say Vargas “plainly has standing to appeal that order.”

The law’s defenders have until Monday morning to file their final response on the stay request according to an order from the Ninth Circuit. The three judges handling the case have each worked on the court for more than a decade. Edward Leavy was appointed by President Ronald Reagan in 1987. Michael Hawkins and Sidney Thomas were both appointed by President Bill Clinton. Earlier this year, Thomas was interviewed by President Barack Obama for the Supreme Court opening that eventually went to Elena Kagan.

A decision from the Ninth Circuit is expected before the temporary stay expires Wednesday night.

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