If the Prop 8 trial were a George Lucas saga, this next installation would likely be titled: Episode IV, The Empire Sits in Legal Limbo. Not super sexy, but even Legal Limbo sees its fair share of light saber action. Today's appellate hearing means that for 2 hours and 15 minutes, the great battle between good and anti-marriage equality surges on.
Here's how it'll break down:
The first hour, scheduled to begin at 10 a.m. west coast time, is dedicated to the issue of standing. Now standing is one of those Law 101 issues -- it gets you an extra point or two on the Criminal Procedure exam -- that determines if a party can bring a lawsuit. Here's the deal: in order to appeal a lower court decision, the plaintiffs have to show that they will suffer an "actual" injury if the lower court ruling is affirmed. They can't just not like it; it has to tangibly affect their lives in the negative. This is usually why the state is involved -- it's why Schwarzenegger was one of the original parties -- because the state has standing to sue on this kind of matter. But the state is not part of this appeal (Schwarzenegger and outgoing Attorney General/incoming Governor-Elect Jerry Brown refused to support the appeal), so the remaining plaintiffs are just anti-marriage equality folks who don't like Judge Walker's ruling.
The question is: do they have standing to bring this appeal? According to Lisa Keen's fantastic report on the topic, the proponents will argue that since they were allowed to be a part of the lawsuit in the first place, they have standing. Courts often err on the side of allowing the lawsuit, but this is a major hurdle to get over before getting to the meat of the case. Especially since one of their original arguments, namely that gay marriage negatively affects their lives, was summarily dismissed in Judge Walker's opinion.
What happens if they lose on standing? Welcome to Legal Limbo...
If the court decides the proponents have standing, then they move on and rule on the merits of Judge Walker's ruling. If the court decides the proponents don't have standing, they may move on and rule on the merits anyway. This saves us all a lot of time and energy, because a ruling on both issues gives the Supreme Court everything they need should/when the time comes.
The second hour will be dedicated to discussing the merits of Judge Walker's opinion, and his interpretation and application of the law. Judge Walker's opinion is predicated upon a simple fact: the state of California has no rational basis for denying same-sex couples the right to marry. Since the proponents failed to prove that the people of the state of California are at risk of a discernible injury should the fundamental right to marry be extended to same-sex couples, the state cannot withhold that very right. What the three-judge appeals panel will be considering is if the proponents (the Yes on 8 folks) actually did establish that California has some sound legal reason -- marriage requires procreation, respect of tradition -- to limit marriage to heterosexual couples, or if Judge Walker correctly applied the facts to the law.
The truth is, no matter the outcome, this case is likely headed to the Supreme Court. An appellate opinion supporting Judge Walker's opinion would be great, but it doesn't mean we've got this thing in the bag.
C-SPAN will be airing the hearing live, starting at 10 a.m. PST. Check your local listings for channel info.
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