Friday, May 31, 2013

What happens if SCOTUS punts?

From the LA Times:
The justices could decide that the sponsors of the ballot measure outlawing same-sex marriage had no legal right, or standing, to defend it in federal court. That would end the case in Washington, but it is not clear what it would mean for California. 
If state officials declared Proposition 8 dead, relying on U.S. District Judge Vaughn R. Walker's 2010 ruling against the measure, same-sex weddings could commence within weeks or months. Or there could be another legal fight over the reach of Walker's ruling.
That technicality has prompted fierce arguments among prominent law professors over legal procedure.

Depending on what the Supreme Court decides, a ruling on standing could provoke a fight over whether the San Francisco judge's decision applies statewide or only to the two couples who sued or the counties where they live, Los Angeles and Alameda.

So,  Gov. Brown could view Judge Walker's ruling as a statewide mandate....
Such a step conceivably could lead to same-sex weddings before a court even had time to rule on the breadth of Walker's ruling. The judiciary would still have the final say, though, and could stop the nuptials once a challenge was filed.
It appears that both sides may have dropped the ball to prevent this.

During the 9th Circuit's hearing on the case, Judge Stephen Reinhardt grilled the Proposition 8 challengers on why they had not named more defendants to ensure a statewide impact....
They didn't think it was necessary.  But meanwhile
ProtectMarriage, the sponsors of Proposition 8, insist that Walker's ruling affected only the two gay couples who sued. But the group did not appeal the scope of his injunction at the time.
So then what?
If the Supreme Court determines that ProtectMarriage has no standing, the group would have to find a surrogate, possibly a county clerk opposed to gay marriage, to make its arguments in court. And that clerk would then also have to show standing. 
"One would hope our opponents would say it is time to stop this fight and move on to something else," Boutrous said.
That's naive.  Our opponents have made an industry out of this and are making serious money opposing equality. I am not sanguine that anyone will be marrying in California any time soon.

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