Judge Walker has ordered that the stay of entry of judgment in Perry v. Schwarzenegger will expire at 5:00 p.m. on August 18. That means at the start of business on August 19, 2010, California will once again be a same-sex marriage state -- unless the Ninth Circuit grants a stay of entry of judgment pending appeal.
Everyone involved has assumed that there will be an appeal, and in fact I think there will be one too. But there is a question about that.
The plaintiffs, as the prevailing parties who won everything they asked for, cannot appeal and would realize no advantage in doing so.
The named defendants will not appeal because they have chosen not to appeal -- whether rightly or wrongly. Both Governor Schwarzenegger and Attorney General Brown have said that they do not wish to see the decision appealed and will not authorize an appeal. So whether they should or should be appealing, and whether they should or should not have fought on behalf of Prop. 8 at the trial court level, the fact is that they aren't going to appeal.
The Board of Supervisors of Imperial County have voted to attempt to appeal, either directly or by intervention. Problem is, Imperial County was not a party to the lawsuit at the trial level, so it clearly lacks standing to appeal; what's more, it is a political subdivision of the state of California and therefore subject to the state's control and override.
Which leaves the question of whether the proponents of Prop. 8 -- the ones who actually mounted the sort-of "defense" of Prop. 8 at the trial court level -- have standing to pursue an appeal. Apparently, although the standing issue was raised and addressed in the trial court proceedings, it was never resolved and the parties agreed to go forward with the trial on the presumption that the proponents had standing to appear. This strikes me as a very strange procedure indeed. Article III is clear and two and a quarter centuries of caselaw makes even more clear that in order to have a right to be heard as a litigant (and not an amicus) in a Federal court, you need to make a showing of some kind of tangible injury you personally have suffered.
That, in turn, is the crux of my confusion about the bitterness of opposition to same-sex marriage: how is it that you are hurt if your gay neighbors get married? Are you somehow less married than you were before that license issued? Because it's clear that "I don't approve of your marriage" isn't enough. And the question the Ninth Circuit will have to address is, how is it that Dennis Hollingsworth, Gail Knight, Martin Gutierrez, Mark Jansson and ProtectMarriage.com have been are hurt because the Registrar of the County of Los Angeles issues a marriage license to Paul Katamai and Jeffrey Zarrillo?
Now, let's say you're a judge on the Ninth Circuit. Or a Justice of the Supreme Court. On the one hand, a part of you is salivating over the chance to write an opinion that is guaranteed to be studied in law schools, analyzed in law reviews, and debated for years to come. It's a chance to show the world how good you are at your job, a chance to make a meaningful statement and a significant impact on the state of individual rights in this nation. But on the other hand, you know that a huge number of people are going to be super-pissed-off with whatever you decide, whether you rule for the plaintiff or the defendant. You can't help but notice that Judge Walker has already been subjected to calls for his impeachment by some very sore losers.
You just might decide that you don't need that kind of a beating. What better way to duck the issue than to issue a short ruling based on standing instead? Punt on the merits and close the file -- simple, fast, and best of all, safe.
Now, I personally think that having permitted the Prop. 8 proponents to have a trial on the merits at all, Judge Walker effectively decided that Dennis Hollingsworth, Gail Knight, Martin Gutierrez, Mark Jansson and ProtectMarriage.com do have enough of an interest in the outcome of the case to confer Article III standing. They should be allowed to appeal, and they should offer their very best arguments. The system works best when both sides of a dispute offer full-throated advocacy for their desired outcome. It also works best when the judges deciding the case do so fearlessly and based on the law, logic, and evidence, and without regard for whether their decisions will be politically popular. And finally, the system works best when the loser is willing to accept an adverse result.
But there is no guarantee that either the Ninth Circuit or the Supreme Court will see it that way.