Walking in a Fire

30something who enjoys a wide variety of delicacies including, but not limited to: classic film, literature, poetry, music, anime, video games, beautiful women and my lovely wife.




If you’re not interested, just keep scrolling.  For those who care, analysis under the cut.  Bear in mind this is thrown together after a short reading of the case.  I welcome questions, and ignore flames.

It is a time honored principle of the law that a person may not sue another person or a government if he himself has not been harmed by that person or government.  All the Court did today was reinforce that notion and make it clear that it was applicable to the defending of such suits in addition to prosecuting them.  If the state of California enacts a law or passes a referendum, then only the State (through its officials or its attorney general) may enforce and defend that law.  The Court, outside if a few parenthetical statements never even broached the issue of the Constitutionality of Prop 8.  I don’t believe this is a bad thing, but its not a win either.  The case could go back down to the California trial level and have to be litigated again.  I view this as more the Supreme Court stalling for time.  Not all of the justices are quite ready to award full Equal Protection for same sex couples… yet.  But it will be in my life, and probably much, much sooner than I ever could have imagined it 10 years ago.

Below I discuss some specifics from the opinion for my more legal-minded or curious followers.
…  [W]e must  put  aside  the  natural  urge  to proceed  directly  to  the  merits  of  [an]  important  dispute and  to  ‘settle’  it  for  the  sake  of  convenience  and  efficiency.”  Raines v. Byrd, 521 U. S. 811, 820 (1997)
I am undecided as to whether or not the Court was ready to rule on the merits here and simply felt powerless to do so, or if they were simply using this as an out.  Given the split of the Court and the dissent, I think it was a combination of both.  It will be very interesting to see what happens when the North Carolina cases manage to get up the appellate chain.  There will be no standing dispute in those cases.  In those cases, NC really wants to enforce their Constitutional amendment, much to my and my partner’s chagrin.  There will be no risk of private citizens coming in trying to enforce a law that the state has chosen not to.  The Court continues:
Petitioners [the private citizens defending the law] argue  that  the  California  Constitution  and its  election  laws give  them a  “ ‘unique,’  ‘special,’ and  ‘distinct’  role  in  the  initiative  process—one  ‘involving  both authority  and  responsibilities  that  differ  from  other  supporters  of  the measure.’ ”  Reply Brief  5  (quoting  52 Cal.  4th,  at  1126,  1142,  1160,  265 P. 3d,  at  1006,  1017–1018,  1030).  True  enough—but  only when  it  comes  to  the process  of  enacting  the  law.   Upon  submitting  the  proposed initiative  to  the  attorney  general,  petitioners  became  the official “proponents” of Proposition 8.  Cal. Elec. Code Ann.  §342  (West  2003).
Though the person in me wishes that the Court would have gotten to the issue, the professor in me loves this.  There are countless laws on the books that lawmakers, agencies and law enforcement knows are awful (I am thinking of all those sodomy laws that were on the books before Lawrence v. Texas).  Oftentimes these rules become antiquated or society as a whole catches up to how ridiculous they are.  This is the Courts’ reaffirmation that private citizens that don’t like it when their state chooses to ignore bad law can’t sue over it.  This has upsides and downsides, but it is a precedent I would have been very disturbed to see overturned.  The Court concludes very simply:
We have never before upheld  the  standing  of a private party  to  defend  the  constitutionality  of  a  state  statute when state officials have chosen not  to.   We decline  to do so for the first time here.
Again, the Court never came near discussing Prop 8 on the merits.  If you want to call a case a win when it is thrown out on a technicality, have at it.  I am still waiting for them to get to the real issue though.  In another 1-3 years, I think we’ll be watching and listening with baited breath again.  The Windsor case, which I will post about tomorrow, gives us a much better idea of how the Court might rule when that day comes.
  1. pro-dumbledore said: Well fuck
  2. astrangerhere posted this