As I previously predicted, Judge Vaughn Walker has refused to grant an injunction to proponents of Proposition 8 that would delay a rush by local California governments to marry gays. He contends that proponents didn’t show that they would be harmed if gay marriage proceeds, a peculiar notion that hinges on his contention that gay marriage would have no negative effects on anyone. Even more bizarre, he claims that he doesn’t have to grant the stay because the proponents may not have standing to pursue an appeal:
To establish that they have standing to appeal the court’s decision under Article III, Section 2 of the Constitution, United States District Court For the Northern District of California proponents must show that they have “suffered an injury in fact, which is fairly traceable to the challenged action and is likely to be redressed by the relief requested.” Didrickson v United States Dept of Interior, 982 F2d 1332, 1338 (9th Cir 1992). Standing requires a showing of a concrete and particularized injury that is actual or imminent. Lujan v Defenders of Wildlife, 504 US 555, 560 (1992). If the state defendants choose not to appeal, proponents may have difficulty demonstrating Article III standing. Arizonans for Official English v Arizona, 520 US 43, 67 (1997).
As official proponents under California law, proponents organized the successful campaign for Proposition 8. Doc #708 at 58-59 (FF 13, 15). Nevertheless, California does not grant proponents the authority or the responsibility to enforce Proposition 8. In Lockyer v City & County of San Francisco, the California Supreme Court explained that the regulation of marriage in California is committed to state officials, so that the mayor of San Francisco had no authority to “take any action with regard to the process of issuing marriage licenses or registering marriage certificates.” 33 Cal 4th 1055, 1080 (2004). Still less, it would appear, do private citizens possess authority regarding the issuance of marriage licenses or registration of marriages. While the court has ordered entry of a permanent injunction against proponents, that permanent injunction does not require proponents to refrain from anything, as they are not (and cannot be) responsible for the application or regulation of California marriage law. See Cal Health & Safety Code § 102180. The court provided proponents with an opportunity to identify a harm they would face “if an injunction against Proposition 8 is issued.” Doc United States District Court For the Northern District of California #677 at 7. Proponents replied that they have an interest in defending Proposition 8 but failed to articulate even one specific harm they may suffer as a consequence of the injunction. Doc #687 at 30.
I can’t speak to the cases he cites, but if his theory is correct, it means the death of any referendum that results in action that public officials don’t like. Let’s say California voters approve a proposition mandating the death penalty for aggravated murder. Government officials happen to be adamantly opposed to the proposition, and the ACLU challenges it. They get a judge to agree with them. According to Walker, those who got the proposition on the ballot and convinced voters to pass it wouldn’t have standing to appeal his ruling, because they can’t prove an actual or imminent harm to themselves, and don’t enforce the law. The government doesn’t like it, so they refuse to appeal. End of story. Ed Whelan of NRO has more from another angle.
This is part and parcel with the circus that has been the Prop 8 trial, presided over by a guy who has conducted the entire farce with a predetermined end in mind, and whose written opinion reflected that. As I said in a previous post, I can’t imagine the Ninth Circuit reversing Walker, but hopefully the Supreme Court will have more respect for one of the, if not the, most important foundational institution of our society.