Law prof: If Prop 8 supporters have no standing to appeal, does that mean the trial shouldn’t have happened?

posted at 5:48 pm on August 13, 2010 by Allahpundit

Simple question: If a trial court judge grants standing to someone as a defendant, how can that standing then be stripped to deny them an appeal?

And if the answer is that the defendant never should have had standing in the first place, doesn’t that mean the trial never should have been held?

Walker gave the proponents until 5 p.m. on Aug. 18 to take their motion for a stay to the Ninth Circuit, where three judges who serve on a monthly motions panel will likely hear it. If they uphold Walker’s ruling denying the stay, the only recourse for the proponents will be to ask the Supreme Court to intervene. To do so means asking the justice assigned to the Ninth Circuit to hear the motion. Ironically, in this case, that would be Justice Anthony Kennedy, the court’s frequent majority maker who Supreme Court oddsmakers have long said holds the decisive vote if the question of gay marriage is ever decided there…

And to add another twist, at least one constitutional-law scholar in California is suggesting that by trumpeting the issue of standing, Walker has opened a hornet’s nest he may have been better off leaving undisturbed. “If the proponents don’t have standing to appeal, then it’s entirely plausible that the courts will rule that they did not properly have standing to go to trial,” Vikram Amar, a law professor at the University of California at Davis, told TIME Thursday evening. “This is an issue he glossed over when he allowed them to intervene in the trial.”

Amar says that if the Ninth Circuit agrees with Walker that the proponents don’t have standing to appeal, the judges may well decide they shouldn’t have been allowed to intervene in the case at all. If they do, he says, they could decide to vacate the trial entirely, sending it back to Walker to start over. The governor and attorney general would be unlikely to intervene — but on the other hand, come November, voters will choose new candidates for both of those offices.

Indeed they will, and for his disgraceful abdication of his duty to defend the statute, Attorney General Moonbeam deserves to take an even bigger beating in the gubernatorial race than Boxer’s taking in the Senate election. As for Amar’s point, I don’t think Prop 8 supporters are going to go that route in appealing (yet). Ed Whelan’s read their new petition to the Ninth Circuit for an emergency stay of Walker’s gay marriage order and it turns out they’re arguing that they do have standing under California law — precisely because Schwarzenegger and Brown are being derelict in their duty to defend the statute. Which makes sense: What’s the use in holding a popular referendum if state officials can kill it by letting it die in court?

Meanwhile, some good news for Prop 8 supporters today: PPP’s latest shows surprisingly heavy opposition to gay-marriage, splitting 33/57 on whether the practice should be legal or illegal. That’s dramatically different from both CNN’s poll a few days ago showing voters roughly evenly split on the question of whether gays should have a constitutional right to marry and the overall polling trends over the past six years. What accounts for the disparity? Read Nate Silver’s analysis. One key factor is that PPP not only undersampled young voters but ended up with unusually weak support for gay marriage within that demographic. Could be the start of a new trend, but given how so many other polls cut against, it could also be an outlier. Flag it for now and keep an eye out for new polls in the next week or two to see which is the right answer.


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Comment pages: 1 2

It’s because this judge was not practicing law in his ruling anyways. The state has equally barred all men from marrying men and all women from marrying women. This logic is applied to other types of cases and the states win.

scotash on August 14, 2010 at 2:49 AM

As for being demented, I eat basashi also :)

DarkCurrent on August 13, 2010 at 9:47 PM

That’s good for me. Keeps the pound price for horses up.
We recently sold off like 10 of our hay burners here recently & got a better price than I thought we would since they banned horse slaughter plants here in the US.
They need to bring back horse slaughter plants.
There’s no reason why people shouldn’t eat horse meat if that’s what we want.
Thanks for your support!

Badger40 on August 14, 2010 at 9:44 AM

That’s dramatically different from both CNN’s poll a few days ago showing voters roughly evenly split on the question of whether gays should have a constitutional right to marry and the overall polling trends over the past six years. What accounts for the disparity? Read Nate Silver’s analysis. One key factor is that PPP not only undersampled young voters but ended up with unusually weak support for gay marriage within that demographic. Could be the start of a new trend, but given how so many other polls cut against, it could also be an outlier. Flag it for now and keep an eye out for new polls in the next week or two to see which is the right answer.

I can’t believe the way that CNN poll is being used here. It had a Margin of Error of between 3 and 8, count ’em EIGHT, points. Statistically it’s a piece of garbage and you are going to use it to attempt to impeach a different poll?
That’s not biased, it’s just plain dishonest.

Rocks on August 14, 2010 at 12:12 PM

A FOX News poll, also out today, shows increasing levels of support for gay marriage since 2009. Giving their respondents a three-way choice of marriage, civil unions, and no legal recognition, they find numbers of 37/29/28, with marriage getting the plurality. A year ago, their numbers were at 33/33/29.

From that same analysis of Nate Silver’s which he attempts to spin as support for “gay marriage” despite Fox’s poll almost agreeing with PPP’s. 2/3s of people do not support “gay marriage”. They may support civil unions or some other recognition civilly of same sex unions but 2/3s clearly say it should not be called marriage.

It’s is a farce and a fraud to suggest otherwise.

Rocks on August 14, 2010 at 12:57 PM

Yes, I’m gay, but it’s not all of me. In fact, I place being gay like 8th on my list after being: American, conservative, agnostic, patriotic, boring, witty(?), able to pull of a yellow shirt/sweater… etc.

SouthernGent on August 13, 2010 at 6:19 PM

I feel the same way about being a woman, as another “minority”. Part of what I like about being a conservative is that our policies are about what actually works in the real world, without regard to gender, skin color, etc. It’s the activists -the large, squeeky wheel – that claim to represent us that are so problematic. While I am eternally grateful for the right to vote, I am sick to death of today’s women’s rights activists who spend their entire lives and fortunes to preserve my “right” to kill my unborn child and ignore the very real oppression of their “sisters” in honor killings here in the US. Why do gay activists spend all their time on gay marriage and not focus on the serious and deadly oppression of homosexuals in Iran? The activists are wasting opportunities, it seems to me.

inmypajamas on August 14, 2010 at 8:53 PM

What accounts for the disparity?

I’m for gay marriage (or at least not horribly opposed; I’m more indifferent really, but I’d normally vote “yes” as “meh” isn’t an option).

I’m strongly opposed to Judges finding (or more accurately, imagining) new “rights” in the Constitution and deciding they’ll now be crafting new laws from the bench to impose on the populace… On this I vote more of a *the rest of this sentence removed as children may read this comment*

So if I were in CA and you polled me; I’d oppose gay marriage. Not based on the issue, but based on the issue being a proxy for something I care more strongly about.

gekkobear on August 15, 2010 at 3:28 AM

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