Taking a Stand on Standing

At the Prospect on Monday, Chris Geidner took a principled stand on the procedural question of who should be able to defend Proposition 8 in the courts: Do only California state officials, who have declined to support this antagonism toward marriage equality? Or do Prop. 8's authors and backers. The LA Times essentially agreed that Prop 8 deserves a full hearing in court so that it can die on its merits, saying here:

[T]he state should be required to hire an attorney to provide the best possible defense. The constitutionality of Proposition 8 is for the courts to decide, not state officials.

Shannon Minter and Chris Stoll of the California-based National Center for Lesbian Rights, one of the big three LGBT legal advocacy groups, disagree, saying:

But Prop 8 has already had its day in court. It lost -- and not because there weren't any lawyers to defend it. Despite hiring a large team of experienced lawyers and putting on the best case they were able to muster, the supporters of Prop 8 were unable to present any good reasons to uphold it. After giving the proponents ample opportunity to defend Prop 8 and carefully considering their arguments, Judge Walker issued a carefully reasoned decision overturning the measure.

I don't have a strong opinion either way; civil procedure is one of those technical legal things that I don't feel I can parse intelligently. Tactically, I can see what a relief it would be to AFER and the LGBT legal groups not to see the case die with Judge Walker's ruling. The other benefit of ruling that Prop 8's backers don't have standing: that would leave Walker's opinion intact, but only for California. The Prop 8 question wouldn't head to the Supreme Court. As I wrote here, I like that idea.

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