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MsTinkerbelly · 08-09-2010, 02:49 PM

On the Prop 8 Stay and Standing
by Brian Devine

I predict we’ll have Judge Walker’s ruling on the Motion to Stay either today or tomorrow. And I predict he’ll deny the stay, allowing same-sex couples full marriage equality for the first time since that bittersweet night in November 2008.

While we wait, let’s take a look the issue of “standing” and what it means to the stay and the appeal of Judge Walker’s opinion.

What’s “Standing”

Article III of the US Constitution gives Federal Courts the limited jurisdiction to decide actual cases or controversies. This is referred to as “Article III standing.” To have standing to bring a lawsuit or to pursue an appeal, a party must show that he or she has suffered an: “injury in fact —— an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.”

To appeal a decision, the Prop 8 supporters must show that allowing same-sex couples the right to get married somehow invades their rights and causes them harm. Remember, though, that Judge Walker already ruled that “Proposition 8 does not affect the rights of those opposed to homosexuality or to marriage for couples of the same sex.” In other words, if Prop 8 did not exist, the rights of those people who support Prop 8 would not be affected. Consistent with this holding, Judge Walker should find that the Prop 8 supporters do not have standing because they will not suffer any “concrete and particularized” harm if Prop 8 is not enforced.

The best argument that Prop 8 supporters can make is that they would be injured by the simple fact that California is not enforcing a law passed by the People. But the Supreme Court has held that “[an] asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court.” (Allen v. Wright, 468 U.S. 737, 754 (1984))

I think there’s a good chance Judge Walker will find that the Prop 8 supporters lack standing. The only parties in the case who do have standing (the Plaintiffs and the State) have not appealed and have affirmatively said that they do not want a stay. This means that if Judge Walker finds that the Prop 8 supporters do not have standing, he also will deny the motion to stay.

There is more, but I didn't have enough time.....sorry!

08-09-2010, 02:49 PM	#386
MsTinkerbelly Timed Out - TOS Drama How Do You Identify?: ... Preferred Pronoun?: ... Join Date: Nov 2009 Location: ... Posts: 6,573 My Photo Gallery Thanks: 30,737 Thanked 22,907 Times in 5,017 Posts Rep Power: 0	Prop 8 trial tracker On the Prop 8 Stay and Standing by Brian Devine I predict we’ll have Judge Walker’s ruling on the Motion to Stay either today or tomorrow. And I predict he’ll deny the stay, allowing same-sex couples full marriage equality for the first time since that bittersweet night in November 2008. While we wait, let’s take a look the issue of “standing” and what it means to the stay and the appeal of Judge Walker’s opinion. What’s “Standing” Article III of the US Constitution gives Federal Courts the limited jurisdiction to decide actual cases or controversies. This is referred to as “Article III standing.” To have standing to bring a lawsuit or to pursue an appeal, a party must show that he or she has suffered an: “injury in fact —— an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” To appeal a decision, the Prop 8 supporters must show that allowing same-sex couples the right to get married somehow invades their rights and causes them harm. Remember, though, that Judge Walker already ruled that “Proposition 8 does not affect the rights of those opposed to homosexuality or to marriage for couples of the same sex.” In other words, if Prop 8 did not exist, the rights of those people who support Prop 8 would not be affected. Consistent with this holding, Judge Walker should find that the Prop 8 supporters do not have standing because they will not suffer any “concrete and particularized” harm if Prop 8 is not enforced. The best argument that Prop 8 supporters can make is that they would be injured by the simple fact that California is not enforcing a law passed by the People. But the Supreme Court has held that “[an] asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court.” (Allen v. Wright, 468 U.S. 737, 754 (1984)) I think there’s a good chance Judge Walker will find that the Prop 8 supporters lack standing. The only parties in the case who do have standing (the Plaintiffs and the State) have not appealed and have affirmatively said that they do not want a stay. This means that if Judge Walker finds that the Prop 8 supporters do not have standing, he also will deny the motion to stay. There is more, but I didn't have enough time.....sorry!