I predict we'll have Judge Walker's ruling on the Motion to Stay either today or tomorrow.  And I predict he'll deny the stay, allowing same-sex couples full marriage equality for the first time since that bittersweet night in November 2008.

While we wait, let's take a look the issue of “standing” and what it means to the stay and the appeal of Judge Walker's opinion.

What's “Standing”

Article III of the US Constitution gives Federal Courts the limited jurisdiction to decide actual cases or controversies. This is referred to as “Article III standing.” To have standing to bring a lawsuit or to pursue an appeal, a party must show that he or she has suffered an: “injury in fact —— an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” 

To appeal a decision, the Prop 8 supporters must show that allowing same-sex couples the right to get married somehow invades their rights and causes them harm.  Remember, though, that Judge Walker already ruled that “Proposition 8 does not affect the rights of those opposed to homosexuality or to marriage for couples of the same sex.” In other words, if Prop 8 did not exist, the rights of those people who support Prop 8 would not be affected.  Consistent with this holding, Judge Walker should find that the Prop 8 supporters do not have standing because they will not suffer any “concrete and particularized” harm if Prop 8 is not enforced.

The best argument that Prop 8 supporters can make is that they would be injured by the simple fact that California is not enforcing a law passed by the People.  But the Supreme Court has held that “[an] asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court.” (Allen v. Wright, 468 U.S. 737, 754 (1984))

I think there's a good chance Judge Walker will find that the Prop 8 supporters lack standing.  The only parties in the case who do have standing (the Plaintiffs and the State) have not appealed and have affirmatively said that they do not want a stay.  This means that if Judge Walker finds that the Prop 8 supporters do not have standing, he also will deny the motion to stay.

More on the flip . . .

Didn't Judge Walker Already Rule That The Prop 8 Supporters Have Standing?

No.  Judge Walker decided that the Prop 8 Backers could intervene, not that they have Article III standing.  To intervene in a case, a party does not need to show that they have standing. That's because a “case or controversy” already exists.  (The Plaintiffs had standing to bring the case because they were being denied their constitutional right to get married.)  Since both the Plaintiffs and the Defendants already had standing, the Court had jurisdication over the “case.” From there, deciding that the Prop 8 supporters could intervene in the case was an easy call.  The law of the Ninth Circuit holds that a “public interest group may have a protectable interest in defending the legality of a measure it had supported.” 

But this does not mean that it has standing. To the contrary, on several occasions the Supreme Court has recognized that a party who was allowed to intervene in litigation does not necessarily have standing.  For example, the Supreme Court said:

[I]f the original party on whose side a party intervened drops out of the litigation, the intervenor will then have to establish its own standing to continue pursuing litigation. (Diamond v. Charles, 476 U.S. 54, 64, (1986))

Could This End Here And Now?

Maybe at the Ninth Circuit.  While the popular spin is that this case “is certain to be resolved at the Supreme Court,” that's not entirely clear.  If Judge Walker rules that the Prop 8 supporters do not have standing, that does not necessarily mean they can't appeal.  The Ninth Circuit will independently decide the issue of standing.  But if the Ninth Circuit decides that the supporters of Prop 8 do not have standing, it will reach only the issue of standing, not the much harder question of deciding whether Prop 8 is constitutional.

If A Stay Is Granted, Can The State Still Issue Marriage Licenses?

Yes.  All a stay does is prevent the Court Clerk from entering judgment.  It does not erase Judge Walker's decision, and it does not prohibit the defendant (the State) from voluntarily complying with the decision by issuing marriage licenses to all couples, regardless of gender.  A Federal District Judge has declared that Prop 8 is unconstitutional.  Even if judgment in the case is stayed pending appeal, it would be perfectly reasonable for the State to decide that it will stop enforcing Prop 8 until and unless Judge Walker's decision is reversed by another Court. 

If the State began enforcing Judge Walker's opinion on its own, I would expect the Prop 8 supporters to file a new lawsuit (in State Court) seeking an injunction requiring the State to enforce Prop 8. This might bring back memories of 2004 when the Supreme Court held that the City and County of San Francisco did not have the authority to issue marriage licenses to same-sex couples.  However, that case (Lockyer v. City and County of San Francisco) was based on California Constitution Article III, section 3.5 which prohibits administrative agencies from deciding on their own to not enforce laws based on their belief that the law is unconstitutional.  However, if the Governor or the Attorney General made that decision, section 3.5 does not apply.  I haven't researched it, but I don't know that anything would prohibit the Governor or the Attorney General from deciding to enforce a District Court's order declaring Prop 8 invalid, even if that judgment were stayed pending appeal.

So with that, we now wait for Judge Walker order on the Motion to Stay. . .  Stay tuned . . .