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The Prop 8 “Stay Go-Round”

As reported in about a scrillion places last week (but nowhere so brilliantly as here), Judge Vaughn Walker denied the Prop 8 proponents’ motion for a stay pending appeal of his decision in the Perry case. Erring on the side of caution, though, he stayed the stay (huh?) for a few days in order to give the federal appellate court time to consider an emergency appeal.

This evening, with papers for and against the appeal (find both here) having been filed, the court issued this terse order (I’ve stripped out the legalese for your reading enjoyment):

Filed order (EDWARD LEAVY, MICHAEL DALY HAWKINS and SIDNEY R. THOMAS) Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court…orders that this appeal be expedited….

This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California. The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997). IT IS SO ORDERED. [7441574] (JS)

That’s it. But what an “it”! The case that the court cited, Arizonans For Official English v. Arizona, takes a very stingy view of standing. Although this is cheating, here’s the relevant part of the overview from the case (cheating because the overview is a summary and not part of the official holding):

A state employee sued the state of Arizona and the governor for a judgment declaring that the provisions in Ariz. Const. art. XXVIII making English the State’s official language were unconstitutional. The State was dismissed as a party, the trial court entered judgment in favor of the employee, and the governor declined to appeal. However, the appellate court allowed the sponsor of the initiative for art. XXVIII and its chairman to intervene, and affirmed the trial court’s judgment. On appeal, the [Supreme C]ourt vacated the judgment and held as follows: The employee resigned from her position with the state during the pendency of the appeal, thus she no longer had standing and her claim was moot. Neither the sponsor nor its chairman had a direct stake in the outcome. Thus, they had no standing and there was no case or controversy before the appellate court, and under U.S. Const. art. III, the appellate court had no jurisdiction.

The highlighted language reflects the part of the overview that most closely parallels this case. The Supreme Court could always wriggle around this, or simply overrule it (in the corporate financing case, Citizens United, for example, the Court was little troubled by overruling even its very recent precedent). But as long as Arizonans for Official English stands, it’s a substantial obstacle for the Prop 8 proponents. They’d better hope that the state appeals, but they’d also better not count on that happening.

Update on this point: For a much more comprehensive treatment of the standing issue (which ultimately comes to the same conclusion — that the proponents have a heavy lift on this question), see David Cruz’s excellent guest blog here.

Don’t get giddy yet. In a case like this, even the standing issue (which will itself be decided by a panel that had nothing to do with today’s ruling) could then go to an en banc hearing (of 11 of the court’s judges) and then to the Supreme Court. So even if the defenders lack standing to appeal, we likely won’t know that for some time yet.

I can’t help concluding this post with a brief observation on the similarity between Arizonans United and Perry. Both cases involved  popular referenda that gave voice to a caste-based principle of subordination. This is popular democracy at its worst, and the very reason courts are standing by to enforce constitutional rights. Standing might not be the most viscerally satisfying way of expressing judicial rejection of this ugly impulse, but in its way it affirms an important truth: Those who support initiatives aren’t the ones directly affected by them. Their ability to get enough signatures for the ballot, and then to play to primal fears (nativist, Christianist, and so on) to get their measures passed, can’t and won’t deter courts from discharging their constitutional duty.

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