Conservatives May Have Only Themselves To Blame if they Lose Prop 8 on Standing Issue

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The long and arduous debate over strict-constructionism and original intent has always seemed to me to be displaced.  The idea that we can somehow infer the intent of the drafters of the constitution runs into problems when the question turns to which framer do we follow.  For it seems there were quite a few, and many had contradictory ideas.  Indeed, how can we follow the framers when the framers themselves were quickly polarized on the issue of the intended role of the federal government?

Likewise the issue of strict-constructionism runs into logical problems, in that any reading of the constitution necessarily involves interpretation.  There is no plain meaning and application of a document that was intentionally written to be vague and flexible.

And so yes, the founders of the constitution likely never considered the possibility that marriage equality could be an issue. However, they still drafted legal concepts such as due process of law and equal protection under the law, to guide our thinking on how the constitution, written over 200 years ago, would rule on a relatively new and contemporaneous issue.

Judge Walker, as I have written, has, I think, gone very far to protect against those who somehow believe that same-sex marriage could open the door to things like polygamy, bestiality, and adult-children marriages.  Within the framework of equal protection under the law comes the notion of compelling government interest.  He has suggested that there is no compelling government interest for the government to get involved here and deny individuals any fundamental rights under the law.  Such lack of government interest probably does not exist in the other cases that constitute the conservative slippery-slope argument against gay-marriage.

The emerging issue, however, is whether opponents of gay marriage will have the standing to challenge Judge Walker’s ruling.  It is ironic that this issue would come up, because conservatives have always warned me that allowing what they consider looser interpretations of the constitution, i.e. anything other than what they call strict-constructionism and original intent, will lead to unintended consequences.

That is precisely what may be about to happen to conservatives on the issue of standing, which has been their hallmark.  Over the past thirty years, according to UC Irvine Law School Dean Erwin Chemerinsky in an op-ed on August 15 in the LA Times, “conservative justices on the Supreme Court have ruled to limit who has standing to bring a claim in federal court. In cases involving civil rights, environmental protection and the separation of church and state, the court has ordered that cases be dismissed because the party pursuing the case had no legal standing to do so.”

“Article III of the U.S. Constitution restricts federal courts to deciding “cases” and “controversies.” The Supreme Court long has held that, in order to meet this requirement, a person or group pursuing legal action must have standing, a status conferred only on those who have suffered a direct, concrete injury. An ideological objection to a government action, no matter how strongly felt, is insufficient for standing,” Professor Chemerinsky writes.

He then cites examples, and one of the more egregious is well-known in civil rights circles. “The Supreme Court ruled that a person who had been subjected to a chokehold by Los Angeles police officers lacked standing to challenge the constitutionality of that procedure because he could not show that he personally would be likely to be choked again.”

Another example, “Just a few years ago, the Supreme Court held that no one had standing to challenge the George W. Bush administration’s grant of funds to religious institutions to provide social services. The court stressed that no one was directly injured, even though there was a claim that this was an impermissible establishment of religion in violation of the 1st Amendment.”

Right now, Gov. Schwarzenegger and Attorney General Jerry Brown have standing to appeal the decision, however, both have indicated that they will not. Interestingly enough, Meg Whitman in her run for Governor has indicated that she will appeal if she is elected. However, by the time she would become governor, if she does, the filing deadline for an appeal would have long since passed.

The problem that opponents face, Professor Chemerinsky argues, is because they are in no way enjoined or covered by the injunction, and so they cannot be the proper party of it.  He writes, “The Supreme Court has explicitly held that standing to appeal is required and that being an intervenor is insufficient to meet this requirement. In one case, the state of Illinois refused to appeal a federal judge’s ruling striking down a law regulating abortion, and a doctor who had intervened tried to appeal to defend the law. The Supreme Court held that the doctor lacked standing and ordered the appeal dismissed.”

He continues, “In another case, voters who supported an Arizona initiative declaring English to be the official language of the state tried to appeal to defend the law. The Supreme Court unanimously ordered the appeal dismissed and expressed “grave doubt” as to whether supporters of an initiative have standing to appeal to defend it.”

Dean Chemerinsky argues that if the 9th Circuit and the Supreme Court simply follow the “well-established law, they will need to dismiss the appeal on grounds that those who filed it have no standing. The outcome, then, will be that marriage equality will exist in California, at least unless and until in some other case, some day, the Supreme Court comes to a different conclusion.”

And if that happens, conservatives will ironically have no one to blame but themselves (and Governor Schwarzenegger and Attorney General Jerry Brown) for creating such a high standard for standing.

A couple of the comments that stood out included “How can it be, that a person that is subject to a law has no standing to address that law in court?”  Someone else wrote, “If someone tries to impose a law on someone, then tells that someone that the court is their only redress, and then tells that someone they have no standing in that court, do you think they’re really going to abide by that law?  Or that court, for that matter?”

The problem both of those questions/ points miss is that a person is not subject to the law and does not face it directly unless they are a gay person attempting to get married.  The average individual is not impacted at all by the ruling.  Or at least that is how Judge Walker has ruled.  Given the high standards that the courts have set for standing, it does not seem likely they could rule otherwise.

And that might be the biggest irony of all.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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19 Comments

  1. davisite2

    David… in each of the Supreme Court cases that you cited concerning Supreme Court decisions on standing, isn’t it true that their decision did not result in a lower court’s decision being implemented into actually changing the law in the lower court’s jurisdiction?
    A 9th district ruling that the law calls for them to not give Protectmarriage standing and then to not vacate Judge Walker’s proceedings because the same Federal Court rulings somehow do not apply cannot be defended. Protectmarriage will probably add to their argument, on the validity of their standing before the 9th in December, that if they are denied, then their standing before Judge Walker was not legal under Federal law and Judge Walker’s proceedings must be vacated. The 9th’s decision and legal explanation should be extremely interesting.

  2. E Roberts Musser

    davisite2: “The 9th’s decision and legal explanation should be extremely interesting.”

    If I am not mistaken, isn’t the 9th circuit the most overturned circuit in the nation, and has a habit of coming out with some pretty bizarre arguments to bolster their decisions?

  3. E Roberts Musser

    To Don Shor: Thanks for the link (I’m not a big Limbaugh fan – talk about hot air!). Clearly there was a time when the 9th circuit was the most overturned circuit in the nation (1996-1997) – over 90% of the time. I’m just guessing, but did that have anything to do with Rose Bird or was she before that? Now the 9th circuit is overturned about the same amount as any other circuit – 75% of the time. That seems like an disgracefully high percentage to me for a national average. Makes one wonder if Congress is picking the right people for the job if on national average, these federal circuit court judges are getting it wrong 3/4 of the time!

  4. davisite2

    If the 9th Circuit allows Protectmarriage standing, this decision will be appealed to the Supreme Court. Such a situation will be the most favorable situation for Judge Kennedy. He can then rule to vacate the 9th Circuit and Judge Walker’s decision on the basis of lack of standing(joining,IMO, what will be a clear majority opinion)and avoid having to vote on the constitutionality of Prop 8 at all. All who have looked at what Judge Kennedy’s record reveals concerning his future decision on the constitutionality of the CA amendment ,while uncertain, does very strongly suggest that he will have little judicial “taste” for being the deciding vote that will redefine the cultural/societal meaning of marriage in our country.

  5. Bill Ritter

    [quote]
    E Roberts Musser

    08/23/10 – 11:02 AM

    davisite2: “The 9th’s decision and legal explanation should be extremely interesting.”

    If I am not mistaken, isn’t the 9th circuit the most overturned circuit in the nation, and has a habit of coming out with some pretty bizarre arguments to bolster their decisions?

    Don Shor

    08/23/10 – 11:36 AM

    http://mediamatters.org/research/200511070001

    E Roberts Musser

    08/23/10 – 11:54 AM

    To Don Shor: Thanks for the link (I’m not a big Limbaugh fan – talk about hot air!). Clearly there was a time when the 9th circuit was the most overturned circuit in the nation (1996-1997) – over 90% of the time. I’m just guessing, but did that have anything to do with Rose Bird or was she before that? Now the 9th circuit is overturned about the same amount as any other circuit – 75% of the time. That seems like an disgracefully high percentage to me for a national average. Makes one wonder if Congress is picking the right people for the job if on national average, these federal circuit court judges are getting it wrong 3/4 of the time!
    [/quote]

    From 1976 to 1986 Rose Bird served as Chief Justice on the California Supreme Court having nothing to do with the 9th Circuit Court of Appeals.

    The President of the United States “picks” nominates all judges and the US Senate confirms them. Since 1981, 20 out of the last 30 years, Republican presidents (Reagan, GHW Bush, GW Bush) have nominated all federal judges. Those Republican presidents and a US Senate that has been controlled by the Republicans 17 of those years (6 during the Clinton presidency) have dominated who currently serves as federal court judges. Arguably the current federal judiciary is one of the most conservative in our country’s history.

    As for the politically fabricated claim that the 9th Circuit Court of Appeals is out of the mainstream of American jurisprudence, a claim constructed by Karl Rove, Rush Limbaugh, Bill O’Reilly, Republican Party operatives, conservative talk radio, the FOX Media propaganda operation and repeated by others it is completely spurious.

    Some posters on this blog assert it is “most overturned circuit in the nation, and has a habit of coming out with some pretty bizarre arguments to bolster their decisions” and “the current Supreme Court having a history of being, in general, ‘dismissive’ of the 9th’s decisions.” But the facts simply to not support the allegations. In fact it is very rare that an appellate decision from any circuit is heard let alone overturned by the US Supreme Court, so please read on……

    Highlights from another Media Matters article: http://mediamatters.org/research/200512150016

  6. Bill Ritter

    Continuing my post:

    Highlights from another Media Matters article: http://mediamatters.org/research/200512150016

    [quote]O’Reilly echoed right-wing falsehood that Supreme Court overturns 9th Circuit at a “record rate”
    December 15, 2005 6:55 pm ET

    SUMMARY: Bill O’Reilly falsely stated that decisions made by the U.S. Court of Appeals for the 9th Circuit are being overturned by the Supreme Court at a “record rate.” In fact, over the past four terms, the 9th Circuit’s reversal rate was near the average for all circuits, and during the 2004-05 term, three other circuit courts were reversed by the Supreme Court at a higher rate than the 9th Circuit.

    The 9th Circuit, also known as the Western circuit, is headquartered in San Francisco but also has courtrooms in Pasadena, California; Portland, Oregon; and Seattle. [It is the largest US Circuit Court in the country.]

    As Media Matters for America has documented, the 9th Circuit’s reversal rate of 76 percent during the 2003-04 Supreme Court term was virtually the same as the national average of 77 percent for all circuit courts. Likewise, the percentage of reversals — 75 percent — of 9th Circuit decisions for the 2002-03 Supreme Court term was almost the same as the national average of 73 percent for the total number of federal circuit court cases reviewed. For the 2001-02 term, the 9th Circuit’s reversal rate was 76 percent while the national average was 78 percent. During the 1990s, however, the 9th Circuit’s reversal rate did exceed the national average, most notably during the 1996-97 term, when the court’s 95-percent reversal rate topped the national average of 71 percent and “earned the Western circuit its reputation as the nation’s ‘most reversed,’ ” according to a July 3, 2004, article in the Sacramento Bee.

    During its 2004-05 term, the Supreme Court reversed 84 percent of the cases it chose to hear from appeals of 9th Circuit decisions, compared to a 73-percent average reversal rate for all circuit courts of appeals. But the high court reversed 100 percent of the decisions it heard from the 1st, 2nd, and 10th circuits.* Circuit court reversals in the 2004-05 term rank as follows:

    [quote]Circuit-Cases taken-Cases reversed-Reversal rate

    1st-4-4-100%
    2nd-2-2-100%
    10th-3-3-100%
    9th-19-16-84%
    3d-4-3-75%
    8th-4-3-75%
    5th-7-5-71%
    4th-3-2-67%
    6th-11-7-64%
    7th-2-1-50%
    11th-10-5-50%
    [/quote]
    These differences in percentages, however, are not substantively significant given the limited number of cases the Supreme Court chooses to review, resulting in comparisons of very small numbers. For instance, in the 2004-05 term, the Supreme Court heard 19 cases appealed from the 9th Circuit, reversing 16 of those decisions; the high court reversed all four cases it heard from the 1st Circuit and the two cases it heard from the 2nd Circuit. The 7th Circuit had one of its two cases reversed; with five of 10 cases reversed, the 11th Circuit had, along with the 7th Circuit, the lowest percentage — but not the lowest number — of cases reversed.

    Because the 9th Circuit carries a larger caseload than any appellate court in the nation, critics of the Western circuit often express its reversal rate in absolute numbers rather than percentages. When expressed in absolute numbers, the 9th Circuit logically experiences the largest number of reversals by the Supreme Court. [Re: the 9th Circuit] in 2004, the court disposed of 12,600 cases, leaving 14,900 still pending. By comparison, the 5th Circuit, which carries the second-largest federal appellate caseload, disposed of 7,700 cases, leaving 5,700 pending.[/quote]

    Therefore in 2004 out of 12,600 cases appealed from the 9th Circuit Court of Appeals to the United States Supreme Court, they chose to “dispose” of the cases as follows: the Court heard 19 cases, reversed 16, affirmed 3 and chose to let the other 12,581 appellate rulings stand.

    In reality, the United States Supreme Court lets stand just fewer than 100% of all cases appealed to it from any Circuit Court in the country, including the 9th Circuit.

  7. Rich Rifkin

    [i]”I’m just guessing, but did that have anything to do with Rose Bird or was she before that?”[/i]

    Rose Bird never was a federal judge of any sort. She had nothing to do with the 9th Circuit. In fact, prior to Jerry Brown placing her on the California Supreme Court, she never had been a judge. She served on the CSC from 1977-1986 when the people voted to remove her and Cruz Reynoso and Joseph Grodin from the Court, because they would never uphold a single death penalty case. Out of 61 cases, they denied all 61. Bird had been the Chief Justice and in a sense the leading target of those who opposed her politics on the court.

    Bird had served for a short time as Jerry Brown’s chauffeur, before he appointed her Sec. of Agriculture. She also had been a public defender and a law professor. She was a Boalt Hall grad. I recall as a kid (when I was in 4-H) that farmers hated her as Sec. of Agriculture. Traditionally, that job was given to a farmer. She had no experience at all in farming. Rather, she used the post to attack farmers for using pesticides.

  8. David M. Greenwald

    The info I have found is that a tiny tiny percentage of cases get overturned in the 9th. However, because it is by far the largest circuit with the most states, on an absolute level, it gets overturned more than other circuits.

  9. E Roberts Musser

    Bill Ritter: “Therefore in 2004 out of 12,600 cases appealed from the 9th Circuit Court of Appeals to the United States Supreme Court, they chose to “dispose” of the cases as follows: the Court heard 19 cases, reversed 16, affirmed 3 and chose to let the other 12,581 appellate rulings stand.”

    Thanks for the clarification on Rose Bird. I am not originally from CA, so what has gone on here in the past I am not always familiar with. I just knew that Rose Bird was a very controversial judge of some sort.

    Your numbers do put things in a more realistic perspective. Even though the Supreme Court reverses 75% of the cases that come before it from the Courts of Appeals, it only chooses to hear a very small percentage of the lower court cases, and lets most decisions stand as correct. That makes me feel much more comfortable with the decisions of the lower courts. This is always the problem with quoting percentages as opposed to actual numbers, and taking numbers out of context to bolster a viewpoint.

  10. E Roberts Musser

    dmg: “The info I have found is that a tiny tiny percentage of cases get overturned in the 9th. However, because it is by far the largest circuit with the most states, on an absolute level, it gets overturned more than other circuits.”

    Another good point wrt perspective. I always learn a lot from this blog!

  11. wdf1

    Your numbers do put things in a more realistic perspective. Even though the Supreme Court reverses 75% of the cases that come before it from the Courts of Appeals, it only chooses to hear a very small percentage of the lower court cases, and lets most decisions stand as correct. That makes me feel much more comfortable with the decisions of the lower courts. This is always the problem with quoting percentages as opposed to actual numbers, and taking numbers out of context to bolster a viewpoint.

    I wish O’Reilly and Limbaugh would feel as responsible for presenting a realistic perspective, too, but I don’t hold my breath for it.

  12. JustSaying

    Rich: Yet again, thanks for bringing historical (and sometimes hysterical) perspective to these discussions. Over the years, I develop vivid memories that don’t necessarily still match reality from the time that the events happened. It’s good to be reminded of what [u]really[/u] occurred. Do you do research each time we come up with some goofy comment, or is all this stuff banging around your brain all the time? Either way, I’m impressed and appreciative.

  13. JustSaying

    Bill: Appreciate your link, just read the Media Matters article. It’s getting more and more amazing how the left and right can spout diametrically opposed facts without hesitation. Being called on untruths by the opposite side doesn’t increase anyone’s concern for accuracy. Even being labeled “false” by fact-checking websites hardly slows down phony political tales.

    Pew: More than one-third of conservative Republicans surveyed now state that Obama is Muslim. And, it’s not just weird stuff that is suffering this fate. Just about any major political argument devolves into lies, not just differences of opinion, but outright lies.

    Those who argue with such falsehoods are not challenged by television interviewers, and print media repeat the comments in a balancing effort to show “both sides. So, the biggest inaccuracies keep being repeated–so often that large numbers who aren’t even on the fringes take them as truth so that their own opinions become based on lies.

  14. Don Shor

    As I was driving to the store yesterday, I listened for a few minutes to the guest host sitting in for Tom Sullivan on KFBK discussing the “Obama is a Muslim” story. He proceeded to say:
    “He was raised a Muslim…we don’t really know what he is, do we?” “I don’t know what he is” … and this line:
    “he certainly doesn’t ACT like a Christian.” He then proceeded to say that if the president was “really” a Christian, he would/should go to church on Sunday, and started a rant about Obama golfing last weekend. That was when I switched stations.
    So it isn’t too surprising where this kind of thing comes from.

  15. wdf1

    He then proceeded to say that if the president was “really” a Christian, he would/should go to church on Sunday, and started a rant about Obama golfing last weekend.

    These were probably the same folks who went on and on about Jeremiah Wright a couple of years ago. Who was Jeremiah Wright? Well, he was Obama’s pastor (at one time). I never heard anyone call him Obama’s imam. Congitive disonance is alive and well; critical thinking just isn’t valued much.

  16. E Roberts Musser

    Just Saying: ” It’s getting more and more amazing how the left and right can spout diametrically opposed facts without hesitation. Being called on untruths by the opposite side doesn’t increase anyone’s concern for accuracy. Even being labeled “false” by fact-checking websites hardly slows down phony political tales.”

    Where the heck do you go to get actual news, as opposed to opinion/garbage? Funny, I always thought Walter Kronkite had journalistic integrity, so believed everything he said in his newscasts when I was young and bothered to listen to the news. It never occurred to me that his bias might have crept in to his newscasting. It occurs to me now of course.

    However, I agree that the current newscasts are no longer about news at all. They are more about gotcha’ tactics, reporting opinion as fact, and creating news through innuendo. Frankly, I do not get news from the usual television stations. I am more apt to listen to C-Span, read “The Week” which does try and be more balanced, documentaries (which can be one-sided for sure, but cover issues more in depth), the History Channel, and of course the Davis Enterprise and this blog, and the Internet.

    But now I make sure to take just about everything I see and hear with a grain of salt. I have to admit I believe almost nothing I listen to or read – I assume there is some sort of bias. I really miss good investigative reporting from years ago a la Jack Anderson (I think that was his name) based in Washington, D.C.

  17. E Roberts Musser

    Don Shor: “He then proceeded to say that if the president was “really” a Christian, he would/should go to church on Sunday, and started a rant about Obama golfing last weekend.”

    I personally don’t care for Obama, but even I think this statement about his not going to church is silly. Call me a cynic, but I have seen lots of people go to church on Sundays thinking that absolves them of the sins they commit the other six days of the week. No religion, ethos or whatever has a lock on purity/goodness/morality. There are good and bad apples in every organization/religion. Some of the truest Christians or ethical people of whatever persuasion I have ever met don’t “go to church on Sundays”. I’m not knocking religions or churches or temples or mosques (I think they certainly have highlighted good principles to live by), I just don’t think going to church on Sundays necessarily guarantees you are a moral/good/ethical person; and if you don’t go to church that makes you a bad person. To put it succinctly, one size does not fit all…

  18. wdf1

    In today’s news:

    Former Bush campaign manager flips on gay marriage
    [url]http://news.yahoo.com/s/yblog_upshot/20100826/pl_yblog_upshot/former-bush-campaign-manager-flips-on-gay-marriage[/url]

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