A reader writes:
One might be tempted to call a decision by the 9th Circuit to dismiss an appeal for lack of standing "narrow," or "procedural." But in an an odd way, this possibility seems to get right to the heart of what the opposition has been saying all along.
After all, standing is determined by material harm. Your interests or your rights must have been diminished in some way in order to file suit to protect them. Now, the anti-8 plaintiffs filed suit against Schwarzenegger, so he was brought into the suit unwillingly. But it's the pro-8 crowd who wants to appeal. Denying standing would be, in effect, that their interests were not harmed by the decision of Judge Walker. That is, they lose nothing as a result of gay marriage being legal. In other words, the legality of gay marriage does not diminish the sanctity of straight marriage. Isn't that what we've been saying?
I don't believe it would function as precedent that would bind the Ninth Circuit in the future. But it's a hell of a slap in the face to reactionaries, when you get right down to it.
Your commenter about courts resolving cases based on standing is true and important for some less-obvious reasons (also, remember the Under God case was resolved by lack of standing without reaching the Under God issue).
If the Ninth Circuit denies the stay requested, either on merits of the stay or for lack of standing to appeal, it's game over, lights-out, thanks-for-playing because it will mean that more couples can marry between now and when/if the Supreme Court rules on the case and sends it back to District Court. If the Supreme Court orders a re-trial, these additional merits will be further proof that the "world didn't end". That was a crucial fact cited by Judge Walker in his opinion: between the initial state Supreme Court ruling and Prop 8, gays got married and the world didn't end.
Additionally, the appeals process for standing will take a year or two more to resolve, rather than the short months originally.
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