Friday, August 27, 2010

Does bigotry make standing?

One of the first questions lawyers are being asked to address in the long battle over California's Proposition 8 - banning same-sex marriages - is simple: who, if anyone, has "standing" to defend the resolution? (After a federal district judge shot down Prop 8, his ruling was appealed to the Ninth Circuit Court of Appeals, which directed both sides to discuss standing. After all, the State of California has no interest in an appeal - Gov. Swartzenegger likes the decision. But what gives standing to, the pro-resolution group defending the lawsuit?)

The issue can get complicated. For instance, in Montana not too long ago, a group of homosexuals filed suit against the state's long-unused sodomy law. The state's primary line of defense was that the plaintiffs had no standing - after all, none of them had been prosecuted under the law. And if they were worried about prosecution, well, they themselves had confessed to breaking the law in their lawsuit.

The courts threw that argument out on its butt - if a state law makes what you do illegal, you sure as hell have standing.

In California, the situation was reversed. The plaintiffs, denied marriage, certainly had standing to sue. But who was damaged by Prop 8's repeal? Some religious-conservative housewife who gets all weepy at the thought of same-sex marriage? Those who fear - with utterly no proof - for children raised that way? Those who contend, with absolutely no logic, that gay marriage somehow "threatens" the institution?

Thus the Ninth Circuit appeal might end with a whimper: The court might find that nobody, except gay couples themselves, has the slightest legitimate interest in the matter.

1 comment:

  1. What is also interesting is whether the Obama administriation will appeal Gill v OPM, which declared much of DOMA unconstitutional. They made a really half hearted defense of it