cross posted from the Prop 8 Trial Tracker

The Prop 8 Proponents filed their response to the Plaintiff’s brief opposing the motion for emergency stay.  The whole thing can be summarized thusly:

Nuh-Uh

As was mentioned in the comments, the brief is essentially a revising of history trying to ignore the fact that the trial took place.  But they get the whole party started off right: by using italics!

But when Plaintiffs’ distortions, cariatures, and straw men are cleared away, their constitutional challenge to Proposition 8 boils down to this: the institution of marriage has been deliberately defined as an opposite-sex union by virtually every society throughout history – from the ancients to the American states – for no good reason.

So, there you have it. The entire case boiled down to one easy sentence courtesy of Chris Cooper and the Prop 8 legal team.  You can all go home now, because this thing is all wrapped up into a tidy box with a shiny bow of discrimination.

In real life however, such quick rejections in legal documents aren’t really going to change any minds, or win any stays.  So, they do waste 22 perfectly good pieces of paper to write some other startling pieces of legally questionable arguments.  Matty Matt pointed this one out in the comments of the previous thread, and it is definitely worth addressing:

Because Plaintiffs have no concrete  plans to marry, not only will a stay not harm them, but their standing  to maintain this action is doubtful.  At any rate, Plaintiffs’ claims of harm to themselves, like their claims regarding the public interest, depend entirely on their claim that Proposition 8 is unconstitutional. (Brief at page 15)

This is another standing issue, but it brings up different questions than the question of the proponents ability to pursue appeal.  Under the jurisprudence on standing, the plaintiff must have a concrete injury.  Now, that is not to say that the emotional harm isn’t necessarily enough to pursue the case, because that would be a question that is on the fuzzy side that we wouldn’t really want to mess with.  The two couples who serve as the plaintiffs surely want to marry, but they want their legal case to be settled.  If they were to marry during the stay, their ability to continue the case could be called into question.  Out of an abundance of caution, they are waiting until the case if finally resolved, but that doesn’t mean that Cooper and the gang won’t try to use it.

That being said, this is fundamentally a weak argument.  The case cited, Lujan v. Defenders of Wildlife, is a very different question.  In that case, some environmentalists sued the government over a couple of development projects on other continents would possibly harm some habitat of some endangered species.  The plaintiffs claimed their injury was that they wouldn’t be able to see the animals on some as-yet defined trip to the regions.  The court said that was insufficient, with Justice Scalia saying that a plane ticket to the region would have been sufficient for standing. Now, there was debate at the time of that decision as to its legal basis, but that is the law of the land as it stands.

It really is not that hard to distinguish the Prop 8 case from Lujan. First, if you even just go by Justice Scalia, the plaintiffs engagement should be their “plane ticket” to satisfy standing requirements. Many couples take years to plan weddings, and these couples should not be forced to plan a wedding at some undetermined date simply because there is a “window.”  The plaintiffs want to marry, and they want the right to marry at a time of their own choosing.  Furthermore, these couples have a much more tangible right at question here than the simple good feeling from knowing a species is alive on the other side of the world.

With these sorts of winning arguments, I almost expect Andy Pugno to ask the Court “I know you are, but what am I?”