Legal standing

September 1, 2010

A fascinating legal question has emerged in the aftermath of Judge
Vaughn Walker’s overturning of Proposition 8 in California: Who has
standing to appeal the decision? Amy Davidson spells this out in the New Yorker, and this summary from the San Jose Mercury News includes comments from leading scholars on court precedent on the matter.

question boils down to who can show that they are harmed by gay
marriage. It isn’t enough, in other words, just to be a citizen or
group of citizens opposed to gay marriage. To have standing in
court, you have to be in a position to show how it has caused you
actual injury. Can anybody do that?

Perhaps the larger question,
only touched on in these stories, is whether it is good for the
country, and the cause of gay marriage, for the issue to be settled by
the courts rather than legislatures. Are we priming for a culture war
like the one prompted by Roe v. Wade? Perhaps not, says Ruth Marcus, in an interesting exchange with Michael Gerson.


Anonymous said... With

Anonymous said...

With remarkably few exceptions, when this issue has come before the electorate it has been rejected. At the same time, the courts have upheld it. This sets up a real sense that the rush to the courts is a "we can't get you to agree with us, so we'll FORCE you to agree."

Is this really the way we want this issue to be decided? The issue is not yet agreed in the society. There is strong, scorched-earth hostility between the parties. Given this, can any imposed solution be accepted?

Judicial imposition without change of heart will be resisted until hearts are changed. We need to seek a legislative solution.

Sally Melcher said... I'm

Sally Melcher said...

I'm very uncomfortable with voting on someone's civil rights. Isn't it American to protect the rights of minorities? Here in Maine, the legislature voted to legalize gay marriage, and it was overturned by a citizens' initiative. The repeal crowd was very well organized. There were people voting who hadn't voted in years and weren't even sure where to go or how to check in. I was there at the polls and I witnessed this.

Anonymous said... ST (in

Anonymous said...
ST (in regards to your link and quote on Enright),

While the media and blogs you rely on are calling Enright a right wing bigot and associating his act with the Cordoba house, the facts are much different.

I wouldn't expect you to look for the truth before posting articles, but you would find: "Enright worked for Intersections International, a leftist peace group that supports the site mosque developers have chosen: the site where their co-religionists murdered nearly 3,000 Americans. The group said Enright was a valuable volunteer for more than a year."

ps. James Jay Lee wasn't a right wing tea party nut either.

retired rick said... While no

retired rick said...
While no one would want to claim that enforced integration has resolved the racial issues, the law did demand legal acceptance of certain rights and there has been progress. Maybe the courts decisions in this matter of gay marriage can move the issue forward.

Travis Trott said... The very

Travis Trott said...
The very reason Prop 8 was overturned was because the defendants, who were allowed to intervene where the state wouldn't, couldn't show they had been harmed by gay marriage, only that they just plain didn't like it. Those are, in fact, poor grounds for denying civil rights.

Also, Anonymous #1, you perpetuate the myth that we gay people want to FORCE our opinion down an unwilling America's throat. It's a silly myth and an irrelevant one. We don't demand equality because we want you to agree; we demand equality so we have the protections and benefits necessary to participate fully in our society. Contrary to what you think, it's not all about you.

Anonymous said... Nor is it

Anonymous said...
Nor is it all about you Mr. Trott. I am pointing out the STORY which is being told; the NARRATIVE which may lead to the cultural conflict which is the topic of the post. Whether I agree with that narrative or not is beside the point.

If society is going to change the story then we had better be ready to address the story. Dismissing the opinions of others with hostility will not change minds or hearts. It will however contribute to the idea that one side IS forcing its opinion on the other.

Ms. Melcher
We vote on other people’s civil rights all the time. Every law made changes what a person can do in the civitas-hence it changes their civil rights. If you are unwilling to vote on others' civil rights you had better stop signing petitions and advocating with your elected officials. That is not however the best choice. We are better served by admitting that we do vote on others' rights and find a way to bear that responsibility well.

As for desegregation, as raised by Mr. Rick, this is actually a point in favor of my argument. Brown v. Board was decided 56 years ago and segregation remains in this country and is actually on the increase in US schools. People's hearts were not changed by the legal decision, so segregation continues. We need to change hearts so the vox populi speaks one word together on this otherwise it is another exercise in empty gestures.

If the people are not united on an issue, all the lawyers will manage is to feed the story that one group of people is seeking to impose their story on others. Since that is NOT the story we seek to feed, we'd be better served by addressing the hearts of others.

retired rick said... Well, I

retired rick said...
Well, I mentioned that we still have a long way to go in race relations, but it is my interpretation of the data that we are not where we used to be and for that progress the law and legal requirements have a great deal of credit. One group's hatred of another is a matter of the heart and to reach the perfect world we do need to change hearts, but to work at giving all people the same legal rights is a matter that the law can require.

Anonymous said... It is a

Anonymous said...

It is a frustrating topic for me since I think we all should have equal rights, but because it is a question of principle -I can show how this topic has directly harmed me and may possibly harm others. I am a single heterosexual woman.

I think it is unfair and a shame that there are so many wonderful men choosing a gay lifestyle and therefore abandoning women in their quest to find a committed partner. The pool of available decent men is on the decline...and I believe that this ruling will indeed harm many singles out there who just need to be loved.

I am not falling for the orientation over choice argument. We all can make choices. The real harm is in the de-valuing of opposite sex relationships. This ruling is an okay to say "I don't need it" to loving opposite sex partners.