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

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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