California's gay marriage ban struck down as unconstitutional

[flash9286]

I mean, heck, there is no proof that the power to strike down "unconstitutional" laws was supposed to be granted to the judiciary (The Democratic-Republicans, ie the Jeffersonians, weren't all that pleased when Chief Justice Marshall found that power)

The Federalists certainly believed the Constitution gave the judiciary that power. It is addressed specifically in The Federalist #78. The power of judicial review was certainly in the discussion around the adoption of the Constitution.

[Imran Siddiqui]

Discussion is far different from it being the actual original intent.

[flash9286]

True, but it is a little unfair to say there is "no proof" when The Federalist Papers, one of the most important and cited sources for interpretation of the Constitution, clearly believed the judiciary had the power.

[Imran Siddiqui]

How is that proof? That's merely an interpretation among one group of writers. That's the problem with original intent. People use the statements of a few people to stand for a large group, who may not have shared that belief when they voted on the premise.

[flash9286]

I'm not an original intentist or meaningist myself. But when both the anti-federalists and the federalists, the two major parties of that time, believed the Constitution gave the judiciary the power of judicial review (as evidenced by their respective writings), that is at least some proof that at least some of the populace believed the Constitution included judicial review. You make it sound like Marshall just invented the power out of thin air and there was no discussion of the matter; it was a debated issue during several of the ratification conventions. Of course the problem with original intent/meaning is that nobody really knows what the ratifiers were thinking.

[Imran Siddiqui]

That flies in the face of the reaction from Jefferson, and why Marshall ruled how carefully he did (affirming judicial review while ruling for the Administration) - Jefferson considered it as Marshall invented the power out of thin air but was happy Marbury's writ was not granted. It was one of the reasons that impeachment against Marshall was seriously considered (abandoned after the impeachemnt against Justice Chase did not succeed).

[flash9286]

Nobody knows what Jefferson thought before the Constitution was ratified. I know some of the anti-federalists papers argue against ratification of the Constitution because they thought that the Constitution gave the power of judicial review and they strongly disagreed with that. Of course after the Constitution was ratified they switched views that the Constitution didn't give the power of judicial review. Jefferson could have been the same way. And there were a number of reasons why Marshall structured the opinion the way he did. Not only did he rule that the Court had power of judicial review but also that the Court had the power to order executive officials to perform certain acts, a proposition that IIRC was more controversial in his day that even judicial review. There was also the political consideration that Madison would have probably ignored the Court's order thereby hurting the Court's prestige. And the Republicans would have been happy to impeach all of the Federalist judges even if Marbuy v. Madison hadn't been decided, there was rumblings of impeachment of all of the Federalist judges soon after the Republicans seized power.

[Imran Siddiqui]

The courts mandating that the executive official had to perform a certain act was not all that controversial. That's what the whole purpose of a writ of mandamus is, and it had been a part of the common law for ages. Furthermore, the argument for judicial review in the Federalist Papers was made by Alexander Hamilton, who had very limited power in the Constitutional Convention in the first place (most of his suggestions never made it through and he signed the document because while he wasn't a big fan, he considered it better than the Articles of Confederation).

[flash9286]

The courts mandating that the executive official had to perform a certain act was not all that controversial. That's what the whole purpose of a writ of mandamus is, and it had been a part of the common law for ages. Furthermore, the argument for judicial review in the Federalist Papers was made by Alexander Hamilton, who had very limited power in the Constitutional Convention in the first place (most of his suggestions never made it through and he signed the document because while he wasn't a big fan, he considered it better than the Articles of Confederation).

Yes it was, and the Republicans considered it an encroachment on the Executive's will.

It was this phase of the case, the alleged trespass of the Judges on the Presidential field of power, which elicited the most attention from the newspapers at the time the decision was rendered, and it received widespread comment. The brief resume of the opinion which appeared in the National Intelligencer was widely republished, and many papers printed the opinion in full.

1 Charles Warren, The Supreme Court in United States History 245 (1922).
Furthermore, The argument for judicial review was made by a lot of the founders. IIRC Madison was in favor of judicial review during the ratification period, but changed his mind afterward.

[flash9286]

Anyway to get this thread back on topic. It looks like the district court's opinion might be the last ruling on the merits of this case.

Ironically, it is a legal doctrine fashioned by conservatives that may provide a decisive victory to the supporters of marriage equality for gays and lesbians and end the litigation over California's Proposition 8.

For decades, conservative justices on the Supreme Court have ruled to limit who has standing to bring a claim in federal court. In cases involving civil rights, environmental protection and the separation of church and state, the court has ordered that cases be dismissed because the party pursuing the case had no legal standing to do so.Now, the U.S. 9th Circuit Court of Appeals — and, ultimately, the U.S. Supreme Court — could well rule that opponents of same-sex marriage have no standing to appeal U.S. District Chief Judge Vaughn R. Walker's decision striking down Proposition 8.

Article III of the U.S. Constitution restricts federal courts to deciding "cases" and "controversies." The Supreme Court long has held that in order to meet this requirement, a person or group pursuing legal action must have standing, a status conferred only on those who have suffered a direct, concrete injury. An ideological objection to a government action, no matter how strongly felt, is insufficient for standing.

For example, almost 30 years ago, the Supreme Court ruled that a person who had been subjected to a chokehold by Los Angeles police officers lacked standing to challenge the constitutionality of that procedure because he could not show that he personally would be likely to be choked again.

Just a few years ago, the Supreme Court held that no one had standing to challenge the George W. Bush administration's grant of funds to religious institutions to provide social services. The court stressed that no one was directly injured, even though there was a claim that this was an impermissible establishment of religion in violation of the 1st Amendment.

Without a doubt, the defendants in the lawsuit challenging Proposition 8, such as Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown, have standing to seek a stay of Walker's injunction and to appeal it. They have indicated, however, that they don't intend to do so.

A new governor or attorney general might want to appeal, but by January, when the new crop of state officials is seated, the filing date will have long passed, and it is hard to see how they could intervene at that point. That means the appeal will be brought by "intervenors" — supporters of Proposition 8 who entered the lawsuit in the federal District Court to defend it.
But because they are not in any way enjoined or covered by the injunction, they are not the proper party to seek a stay of it. Nor do they have standing to appeal Walker's ruling.

The Supreme Court has explicitly held that standing to appeal is required and that being an intervenor is insufficient to meet this requirement. In one case, the state of Illinois refused to appeal a federal judge's ruling striking down a law regulating abortion, and a doctor who had intervened tried to appeal to defend the law. The Supreme Court held that the doctor lacked standing and ordered the appeal dismissed.

In another case, voters who supported an Arizona initiative declaring English to be the official language of the state tried to appeal to defend the law. The Supreme Court unanimously ordered the appeal dismissed and expressed "grave doubt" as to whether supporters of an initiative have standing to appeal to defend it.

What does this mean for the litigation over Proposition 8? Walker stayed his ruling until Wednesday to allow the defendants to seek a stay from the 9th Circuit.

The appellate court may grant a stay only if it finds that the supporters of Proposition 8 have a substantial likelihood of prevailing on appeal and that there will be an "irreparable injury" if there is not a stay.

As Walker explained Thursday, the defenders of Proposition 8 are not likely to prevail because they lack standing; also, it is impossible to see what "irreparable injury" will occur if there is not a stay of the injunction and same-sex couples are allowed to marry pending resolution of the appeal.

The result of all this is likely to be that gays and lesbians will be able to marry beginning Wednesday, when Walker's temporary stay expires. There then will be consideration of the case, over the next couple of years, by the 9th Circuit and ultimately by the Supreme Court.

But if those courts follow well-established law, they will need to dismiss the appeal on grounds that those who filed it have no standing. The outcome, then, will be that marriage equality will exist in California, at least unless and until in some other case, some day, the Supreme Court comes to a different conclusion.

http://articles.latimes.com/2010/aug...riage-20100815

I don't know much about standing, but Chemrinksy seems to be making a reasonable argument.