Skip to Content

Judge: Prop. 8 backers might not have legal standing to appeal

Same sex couple Terese Rowe, left, and Kristin Orbin wait to receive a marriage license application prior to a judge lifting the Proposition 8 stay on same sex marriages at City Hall in San Francisco on Thursday.
REUTERS/Robert Galbraith
Same sex couple Terese Rowe, left, and Kristin Orbin wait to receive a marriage license application prior to a judge lifting the Proposition 8 stay on same sex marriages at City Hall in San Francisco on Thursday.

Lawyers for the proponents of California's same-sex marriage ban vowed Thursday to appeal a federal judge’s ruling that gay marriages could resume in the state Aug. 18.

 “This case has just begun,” said Jim Campbell, a lawyer with the Alliance Defense Fund. He said the legal team was “confident that the right of Americans to protect marriage in their state constitutions will ultimately be upheld.”

Gay rights advocates hailed the ruling and said they were hopeful the ban would be lifted within a week. “[This] ruling affirms that the purpose of our judicial system is to protect our constitutional rights, not to take away those rights,” said Rick Jacobs, chairman of the Courage Campaign.

US District Judge Vaughn Walker ruled Aug. 4 that the voter initiative, Proposition 8, violated the equal protection and due process rights of gay and lesbian couples who want to get married. He ordered state officials to stop complying with the ban on gay marriage.

What remained unclear was when his order would take effect. In his ruling Thursday, Judge Walker refused a request to delay his order indefinitely to allow an expected appeal by Proposition 8 proponents. Instead, the judge gave them a week to request a stay from the Ninth US Circuit Court of Appeals.

Can Prop. 8 supporters appeal?

The judge didn’t stop there. He went on in his 11-page order to question whether Proposition 8 proponents still have legal standing to pursue the case.

California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown have both announced that they will not seek an appeal in the case. They also declined to seek a stay of Walker’s ruling.

That leaves Proposition 8 proponents who are private citizens to pursue the case alone.

According to Walker, to establish legal standing to litigate the case, the Proposition 8 proponents must be able to show a “concrete and particularized injury.”

Since state officials regulate marriages, the governor and the attorney general have legal standing to defend Proposition 8, the judge said. But if the state chooses not to appeal, “proponents may have difficulty demonstrating [legal] standing.”

The Proposition 8 proponents might overcome this obstacle, the judges suggested, by demonstrating how they - the private citizens supporting the marriage ban - would be harmed by the resumption of same-sex marriage in California.

“The court provided proponents with an opportunity to identify a harm they would face if an injunction against Proposition 8 is issued,” Walker wrote. “Proponents replied that they have an interest in defending Proposition 8 but failed to articulate even one specific harm they may suffer.”

The judge said there is nothing in the record showing proponents face the kind of injury necessary to demonstrate legal standing. “As it appears at least doubtful that proponents will be able to proceed with their appeal without a state defendant, it remains unclear whether the court of appeals will be able to reach the merits of proponents’ appeal,” Walker said.

Who has been harmed?

It is clear from the judge’s order that he believes that Proposition 8 proponents face no harm from a lifting of the gay marriage ban. In contrast, he said, “the trial record left no doubt that Proposition 8 inflicts harm on plaintiffs and other gays and lesbians in California.”

He added, “Any stay [keeping the ban in place] would only delay plaintiffs’ access to the remedy to which they have shown they are entitled.”

Lawyers for the proponents had argued that a stay should be issued because any marriages performed while appeals are underway may be of questionable authenticity should a higher court overturn the judge’s decision.

In rejecting this argument, the judge said whether same-sex couples “choose to exercise their right to marry now is a matter that [those couples], and [those couples] alone, have the right to decide.”

It will now be up to the federal appeals court to decide whether the judge’s order should be enforced or put on hold. If the Ninth Circuit refuses to issue a stay, the proponents’ lawyers could seek a stay at the US Supreme Court.

Get MinnPost's top stories in your inbox

Related Tags:

Comments (8)

I can only see one way "straight" people might suffer some level of (emotional) damage to their marriages if Judge Walker's ruling stands and that can only occur if you're not really straight at all.

If, in following the demands of your religious leaders, you have used marriage to a person of the opposite gender as a way to try to ignore and suppress your strong, biologically-based, attractions to your OWN gender, and especially if you have struggled mightily to do so,...

The normalizing of same-gender relationships, especially making gay marriage equal to straight marriage in the eyes of the state, runs the risk of making all your angst, all your frustration, all the effort you've expended to be someone you're not, and the guilt you've felt if you've surreptitiously pursued your natural, same-gender desires through extramarital liaisons or affairs; so much of the pain and struggle in your life and whatever pride you've secretly felt, and whatever blessings you were led to believe you deserved from God for pulling it off may seem like they've been taken away from you and all that effort rendered wasteful and meaningless.

Perhaps that does feel threatening to the point of emotional damage, but lacking those realities and that motivation, I can't see anyway that ANYONE else's marriage to a person of the same gender effects anyone else's marriage to a person of the opposite gender.

Greg's carefully chosen words bring several questions to mind.

Greg says: "...you have used marriage to a person of the opposite gender as a way to try to ignore and suppress your strong, biologically-based, attractions to your OWN gender, and especially if you have struggled mightily to do so,..."

I wonder how someone might go about proving homosexuality is biologically-based in the absence of any data to back it up.

And

Who decides what constitutes a "mighty struggle"?

Greg continues: "The normalizing of same-gender relationships, especially making gay marriage equal to straight marriage in the eyes of the state..."

If a court's edict is all it takes to make homosexuality "normal", would an edict stating that a man who surgically mutilates his genitals to resemble a woman's entitle him ovulate in the eyes of the state?

And if this man claims to *be* ovulating, would a doctor be legally obliged to agree with him whether it was in fact true, or not?

If the doctor chose to refuse to agree to such non-sense, what harm could he argue to back his right to do so?

Is sand food?

Yup. You have two distinct differing classes here. One so far who apparently does not understand the full ramifications of "marriage" but simply equates it to a word and tries to give it relevance against todays desires.

Then we have the other one who pretty much shoots holes in the previous paper.

We definitely have a pattern emerging of "worldly" thinking coming from the liberal left. The days of old where this country had definitive roots in Christian beliefs and who's laws are largely rooted in the same, are beginning to shift because of some brainwashing.

At some point, this is going to eventually mushroom into one solution or the other. At this point, it's any-ones guess. However, based on some of the things beginning to happen on the political front, we'll get our answer more than likely before 2013.

"I wonder how someone might go about proving homosexuality is biologically-based in the absence of any data to back it up."

Everything we do is biologically based.

Everything.

Thank you for your input, Dr. Hughes.

From Dr. Hughes source: "Compared to straight men, gay men are more likely to be left-handed.."

So that means that "bi-sexuals" must be ambidextrous, right?

Pffft.

That article was based upon nothing more than a recitation of anecdotal evidence. Get back to us when you have some actual peer reviewed, biological information.

The evidence presented in that article is statistical, not anecdotal.

An excerpt:

"While sexual behaviour may be chosen, the preponderance of researchers say attraction is dictated by biology, with no demonstrated contribution from social factors such as parenting or other factors after birth.

A host of studies since the mid-1990s have found common biological traits between gay men, including left-handedness and the direction of hair whorls. The likelihood that if one identical twin is gay, the other will be also be gay is much higher than the "concordance" of homosexuality between fraternal twins, indicating that genes play a role in sexual orientation, but are not the entire cause.

"In the past decade, I think the pendulum has swung more toward biological theory and biological causes," said Richard Lippa, a psychology professor at California State University-Fullerton, who has studied hair patterns and other biological traits in gay men.

Sven Bocklandt, a geneticist at the David Geffen school of medicine at UCLA, is bewildered by the argument that people choose their sexual attraction. He said that virtually every animal species that has been studied - from sheep to fruit flies - has a small minority of individuals who demonstrate homosexual activity."