Thought for the day: standing to sue.
In this case, standing to defend. I hope we all remember Perry v Schwarzenegger, in which it turned out the named defendants had no interest in defending, and agreed to let others represent the side they were as happy to concede was wrong. Well, today* the California Supreme Court is expected to answer the Ninth Circuit Court of Appeals' question: is it all right for the state defendants to become national defendants, even though they were never named in the suit filed in the (federal) Northern District Court?
There are a lot of issues at stake here: first, it may well redefine standing as a class, slightly. Certainly California law will be noticeably changed, no matter what the Ninth Circuit decides. More broadly, and importantly to the rest of us outside California, it will finally bring gay persons as a class into question that the Supreme Court will likely need to consider: briefly, does being a gay person constitute membership in a class that the Supreme Court must consider as "suspect" whenever that class is burdened by laws? (my answer: yes, especially as so many laws are drafted specifically to burden only that class of persons) The Ninth Circuit, being the notoriously most-liberal court of appeals in the land, will likely lean toward my interpretation, but there is hardly any guarantee that Anthony Kennedy will (my suspicion is he will, but he's vacillated on gays-as-a-class in the past.) And of course, there is the vital question that the judge in the Northern District held unequivocally: Equal Protection must be applied to gay persons' right to marry. If the Perry side wins in the Ninth Circuit, which they should, it will be up to Anthony Kennedy primarily, to decide whether the Fourteenth Amendment specifically forbids states from preventing gay persons from marrying one another.
Why do I lay this burden at the feet of Justice Kennedy? Because, with John Paul Stevens and Madam Justice O'Connor retired, he is the swing vote on the Court. The Federalists (CJ Roberts, Scalia, Thomas, Alito) will never recognize gays as a class that might require Federal constitutional protection against states. The "liberal" (i.e. moderate) wing of the Court (Ginsberg, Breyer, Sotomayor, Kagan) will never not extend equal protection to as many classes of citizens and persons in the land as practically possible. That leaves the decision more or less squarely in Anthony Kennedy's lap, and past opinions (Lawrence and Limon) indicate that he is inclined to view the private interests of (gay) persons in pursuing marriage as heavy enough to outweigh those of states in preserving marriage as a heterosexual institution.
If -- and the issue remains an if -- but if the California Supreme Court certifies the intervening defendants as having standing to answer the suit, then the two-pronged question of gay marriage, and gay people as a class, will likely find itself on the Supreme Court docket in the next two or three years. Which may actually put the ball into President Obama's court, if any of the Justices should decide to retire (see: Madam Justice Ginsberg, Justice Scalia.)
Exciting day in Constitution-nerd-land.
* UPDATED: what was under consideration, and decided, was how long to give the parties to file their briefs: mid-March. We should have actual hearings on the matter Septemberish, and a decision before the Thanksgiving break.
There are a lot of issues at stake here: first, it may well redefine standing as a class, slightly. Certainly California law will be noticeably changed, no matter what the Ninth Circuit decides. More broadly, and importantly to the rest of us outside California, it will finally bring gay persons as a class into question that the Supreme Court will likely need to consider: briefly, does being a gay person constitute membership in a class that the Supreme Court must consider as "suspect" whenever that class is burdened by laws? (my answer: yes, especially as so many laws are drafted specifically to burden only that class of persons) The Ninth Circuit, being the notoriously most-liberal court of appeals in the land, will likely lean toward my interpretation, but there is hardly any guarantee that Anthony Kennedy will (my suspicion is he will, but he's vacillated on gays-as-a-class in the past.) And of course, there is the vital question that the judge in the Northern District held unequivocally: Equal Protection must be applied to gay persons' right to marry. If the Perry side wins in the Ninth Circuit, which they should, it will be up to Anthony Kennedy primarily, to decide whether the Fourteenth Amendment specifically forbids states from preventing gay persons from marrying one another.
Why do I lay this burden at the feet of Justice Kennedy? Because, with John Paul Stevens and Madam Justice O'Connor retired, he is the swing vote on the Court. The Federalists (CJ Roberts, Scalia, Thomas, Alito) will never recognize gays as a class that might require Federal constitutional protection against states. The "liberal" (i.e. moderate) wing of the Court (Ginsberg, Breyer, Sotomayor, Kagan) will never not extend equal protection to as many classes of citizens and persons in the land as practically possible. That leaves the decision more or less squarely in Anthony Kennedy's lap, and past opinions (Lawrence and Limon) indicate that he is inclined to view the private interests of (gay) persons in pursuing marriage as heavy enough to outweigh those of states in preserving marriage as a heterosexual institution.
If -- and the issue remains an if -- but if the California Supreme Court certifies the intervening defendants as having standing to answer the suit, then the two-pronged question of gay marriage, and gay people as a class, will likely find itself on the Supreme Court docket in the next two or three years. Which may actually put the ball into President Obama's court, if any of the Justices should decide to retire (see: Madam Justice Ginsberg, Justice Scalia.)
Exciting day in Constitution-nerd-land.
* UPDATED: what was under consideration, and decided, was how long to give the parties to file their briefs: mid-March. We should have actual hearings on the matter Septemberish, and a decision before the Thanksgiving break.