The NYT hit Prop 8 hard yesterday. First, an article summing up the major points in the case and its potential trip to the Supreme Court, touching on whether or not Prop 8 proponents have standing as defendant-intervenors:
That said, the conservatives on the current Supreme Court — considered to be in the majority — “have always been the most restrictive about standing,” Mr. Chemerinsky said.
“And that then makes it hard for these conservative justices, however much they disagree with Judge Walker, to find standing,” he said.
He added, “The irony here is that a doctrine that the conservatives have developed over decades restricting standing in federal cases could now be used to end the debate over Prop 8.”
Judge Walker himself addressed the issue of standing in his opinion on Thursday when he denied a request from the Proposition 8 proponents for a stay of his initial decision, issued on Aug. 4, that found the ban unconstitutional. While saying that the proponents had “organized the successful campaign for Proposition 8,” he countered that it was not their job to enforce it.
“They are not (and cannot be) responsible for the application or regulation of California marriage law,” he wrote.
But Vikram Amar, a professor of law at the University of California, Davis, said the proponents had made more compelling arguments in recent court filings than they had in a two-week trial in January and in their closing arguments in June. In particular, Mr. Amar said, the defendant-interveners had done a good job in arguing that allowing same-sex marriages to proceed during appeals of Judge Walker's decision could lead to confusion about their validity.
“I do think that if there's marriages that are entered into and then he's overturned, I think those marriages are vulnerable,” said Mr. Amar, who opposes Proposition 8.
And Frank Rich takes on Prop 8 in his column:
There has already been an attempt to discredit Walker, who has never publicly discussed his sexual orientation but has been widely reported to be gay. The notion that a judge's sexuality, gay or not, might disqualify him from ruling on marriage is as absurd as saying Clarence Thomas can't rule on cases involving African-Americans. By this standard, the only qualified judge to rule on marital rights would be a eunuch. No less ridiculous has been the attempt to dismiss Walker as a liberal “activist judge.” Walker was another Reagan nominee to the federal bench, recommended by his attorney general, Edwin Meese (an opponent of same-sex marriage and, now, of Walker), in a December 1987 memo residing at the Reagan library. It took nearly two years and a renomination by the first President George Bush for Walker to gain Senate approval over opposition from Teddy Kennedy, the N.A.A.C.P., La Raza, the National Organization for Women and the many gay groups who deemed his record in private practice too conservative.
The attacks on Walker have fizzled fast. With rare exceptions from the hysterical fringe — Michele Bachmann, Newt Gingrich — most political leaders have either remained silent about the Prop 8 decision (the Republican National Committee) or punted (the Obama White House). Over at Fox News, Ted Olson silenced the states'-rights argument in favor of Prop 8 last weekend by asking Chris Wallace: “Would you like Fox's right to a free press put up to a vote and say, well, if five states have approved it, let's wait till the other 45 states do?” (No answer was forthcoming.)
Ted Olson and David Boies filed a motion on Friday night with the 9th Circuit Court of Appeals, arguing that Prop 8 proponents motion for a stay does not have a chance of winning on appeal. California AG Jerry Brown once again urged the court to let same-sex marriages proceed.
The appellate court has until 5pm Wednesday to decide whether to put another stay on Walker's decision.
