More hooray!

Judge Vaughn Walker ordered California to resume granting gay people marriage licenses on August 18. The judge allowed the pro-Proposition 8 losing side a week to file an appeal with the 9th circuit court of appeals to prevent this from happening. There is much cheering on the gay side of the case, and it sure looks like gay marriage is back in business in California.

That said, there is a very important part of the judge's ruling that has not received proper attention. The judge has very clearly stated a legal reason why there may never be an appeal of his ruling: the pro-Proposition 8 side lacks standing to appeal. The state of California is not appealing this ruling; both the Governor and the Attorney General have sided with immediate resumption of gay marriage. So the state has no part of the appeal. That leaves only private citizens to mount an appeal that is trying to defend an amendment to the state's constitution. The judge points out that the case law clearly does not give private citizens the standing necessary to appeal a case regarding the state's constitution or the result of a referendum if the state itself has no interest in making such an appeal.

The private citizens qualified for a trial in district court because the plaintiffs sued the governor and the attorney general; the judge allowed the private citizens to argue the case when both the governor and the attorney general declined to do so. But the appeals process is different. The federal constitution requires states, not private citizens, to make these kinds of appeals. The bottom line: the private pro-Proposition 8 groups are not substitutes for the state at the appeal level. They don't have standing in an appeals court. They're at the end of the legal road.

I'm sure that the anti-Proposition 8 legal team is at this moment compiling all the relevant case law and court decisions regarding standing and will clobber the pro-side whenever they meet in the appeals court. If the court rules that the pro-Proposition 8 side has no standing, this would be tremendous news because the case would no longer have any basis, Judge Walker's decision would stand, and gay marriage would be unassailable in California. Of course, even if the ninth circuit court so rules, the Supreme Court would hear an appeal about this appeal. But the case law is very clear: states, not private citizens acting on their own, alone have standing to take these kinds of cases into the appellate courts. There's good reason to think that the pro-Proposition 8 dimwit legal team has really screwed up their case--first, by not offering even a rational defense in the trial court; second, by gambling on an appellate process from which they may be excluded altogether.