California voters to be disenfranchised on Prop 8?

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, 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. 

In the lobby of the Beverly Hills Courthouse, couples Floyd Weldon and Tim Bone, left, and Amber and Jade Fox get word that the ban on same-sex marriages remains in effect. (Luis Sinco / Los Angeles Times / August 12, 2010)

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? 


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  • That might be the case, if a writ of mandate does not lie under California law to compel the state attorney general to do his duty in this situation. On the other hand, infringement of the right of initiative might give them standing. It is up to the 9th Circuit, probably subject to the usual reversal of that court by the Supreme Court, to decide.

    However, that also deprives the activists of getting a quick Supreme Court ruling that there is a 14th Amendment right to homosexual marriage throughout the United States. Thus, the ruling would only be binding in California. As I indicated, they would then have to file a separate suit to have the Ohio constitutional provision knocked out. Good luck with that one.

  • As far as any "Republicans reduced standing" allegation, standing is a part of the "case or controversy" requirement of Article III. One would have to study opinions such as Barrows v. Jackson, 346 U.S. 249 (1953), which predate any such partisanship, to see if the voters have standing in this instance.

    It is not clear that this law is unconstitutional. It is, however, clear, that if Illinois passed a law that all Whites be denied the vote because they are too smart to vote for Todd, that law would be unconstitutional, and if Lisa Byrnes decided not to defend it, some 8th Ward voter wouldn't have standing to complain.

  • Having a law ruled unconstitutional does not equal disenfranchisement. The Proponents have had their opportunity to defend the initiative - first procedurally in Strauss v. Horton (holding that Prop 8 is valid as an amendment), next as intervenors in this case. However, to appeal a ruling, the appellant must be bound by the ruling... and the simple fact that the people's voter initiative has been ruled unconstitutional doesn't mean they are legally bound by the ruling. The Proponents are not required to issue marriage licenses... it is the State. That is intended to be a check on the Judiciary... it's absolutely constitutional... it's called Article III of the constitution. It is ironic that a constitutional check on the judiciary branch may thwart the attempts of those that support Prop 8 in California, but what's good for the goose, must be good for the gander... you don't get to pick and choose which parts of the Constitution you want to adhere to.

    As far as Imperial County is concerned, as an entity, they can have no interest separate from that of the State... they are simply required, as State actors with regard to marriage and bound by the decisions of the State when it comes to marriage, to follow California law - they have no interpretive or discretionary authority in that regard. If they take issue with the State's position on same-sex marriage and wish to fight it, they may take that up with the State... but that's a completely different law suit.

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