If the swing voter, Justice Anthony Kennedy, is questioning standing–whether the Prop 8 case is properly before the US Supreme Court, both sides may want to be concerned.
The standing issue may well let the Supreme Court punt and not decide on the controversial same sex right to marry. The Justices won’t need to consider whether the 14th Amendments due process and equal protection rights apply nor whether marriage should be between a man and a woman. If they punt, then, the California Courts decision to overrule the ban on same sex marriage stands. It’s one way for the Supreme Court could dodge the controversy but it also a legitimate legal avenue for them to take.
Proponents of a ballot initiative have never been granted standing before the Supreme Court, a point made by Justice Ginsburg. The law requires a party to have standing to bring a lawsuit–to show harm or interest in the outcome. Problem is, Prop 8 proponents may not have standing because their “proprietary interest”, as expressed by Justice Ginsburg, is no different than the voters and appears to end when the ballot measure is passed. Lawsuits brought on behalf of a third party or to redress a grievance suffered by all taxpayers (voters) lack standing and their cases are dismissed. In short, Prop 8 proponents may have no right to stand before the Court and ask for legal redress. Case dismissed.(Future ballot proponents take note.)
Or, the Supreme Court could narrowly rule by upholding the California Court’s refusal to ban same sex marriage. The ruling would only apply to California and leave the question up to the other individual states and voters to decide.
Or, the Supreme Court could again decide that marriage is a fundamental right and now extend that right to everyone regardless of gender. Thus, prohibiting states from banning same sex marriages. A historic civil rights decision.
Should all people be treated equally or do we want a two-tiered system? When the rights of a minority are being dictated by a majority, sooner or later, the US Supreme Court, the highest court in the land, will weigh in just as they did with interracial marriages and the civil rights laws. And, if the Supreme Court punts, we can expect the voters and legislatures will weigh in.
Let’s hope the Supreme Court does not make a political decision and makes a just decision based on the law and evidence before them.
Simply my opinion, what say you?
Here is a recording of an interview I gave this morning regarding Prop 8 and DOMA.