California federal judge Judge Vaughn R. Walker's suggestion that no one might have standing to challenge his ruling overturning a constitutional amendment approved by voters declaring marriage to be a union between a man and a woman leaves an important question:
Who speaks for California's citizens?
Even though the defendants in that case were Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown, the two have refused, in their official capacity as representatives of the people, to pursue an appeal of Walker's decision that went against the two, the state and the voters.
That leaves only a private group, ProtectMarriage.com that took of the defense of Proposition 8 to appeal the Walker's ruling. But Walker is suggesting that even that group might not have standing to appeal--leaving no one to defend a constitutional amendment that was approved by more than 7 million voters.
Here's the kicker: The rules of standing apparently allow only state appeals to higher court. Under federal rules, the appellant must have suffered actual damages and Walker--in warning that he might lift his stay of gay marriages in a week--indicated that the private group had not met the test.
Cognizant of the problem, the group had asked Walker to allow Imperial County to intervene, based on the argument that as an issuer of marriage licenses, it qualified. Walker had refused to allow the county to intervene.
Again, leaving the 7 million people who voted for Proposition 8, without a voice.
I'll undoubtedly receive responses that I'm not a lawyer so I should shut about such matters. Or that Republicans were the ones who tightened the rules on standing to better control the number of trivial suits flooding the courts, another reason I should shut up.
But that still leaves open the question of whether, in the larger scheme of things, justice is being served by excluding the wishes of the majority of Californians.
We ran into the same question when some American citizens asked a court to require candidate Barack Obama to produce evidence that meets the constitutional prerequisite that the president must be a United States citizen. A federal judge denied the request based, also, on the rules of standing. In other words, no U.S. citizen has standing, by the fact that he is a citizen, to require that a constitutional provision be enforced. At the time, I suggested that it was time for Congress to established a legal procedure for doing so. (It provoked a response that included, among others, that I was only doing it because Obama is black, making me a racist.)
Yes, the law is complex and far out of reach of the common bloke's understanding. Relaxing standards of standing could open the courts to a flood of actions claiming that any legislation or executive action caused some party or another damage and, hence, gives him standing.
Remember, what I'm discussing here isn't whether citizens have a right to deny anyone protections under the 14th amendment or whether gays have a right to marriage in the traditional meaning.
I'm not asking whether 7 million people have a right to have their view of marriage (or any other issue) prevail. Instead, what I am asking is whether 7 million voters even have a right to be represented in court, when public policy is being set.
How just is a law or its interpretation that leaves 7 million citizens without a voice?