Appeals court stays marriage ruling (Ca Prop 8)

Politico ^ | August 16, 2010 | Ben SMith

[freethinker_for_freedom]

I guess I don’t interpret the First Amendment the same as you do—I believe that it should apply to all religions equally.

[ivyleaguebrat]

“An excellent question and I’d love to hear a FReeper attorney address it. Anyone?”

Disclaimer: I’m not an attorney. BUT I am a law student and have followed this case, and I’d like to take a stab at answering your question objectively, for sake of practice if nothing else.

The “homosexuals bringing this frivolous lawsuit” have standing because they once had the right to marry the person of their choosing (their same-sex partner) under California law, and now do not.

Thus they “suffered an injury in fact, which is fairly traceable to the challenged action and is likely to be redressed by the relief requested.” Didrickson v United States Dept of Interior, 982 F2d 1332, 1338 (9th Cir 1992).

Standing requires a showing of a “concrete and particularized injury that is actual or imminent.” Lujan v Defenders of Wildlife, 504 US 555, 560 (1992).

In this case, the “homosexuals bringing this frivolous lawsuit” have an injury that is actual, though not imminent.

If the governmental officials of California had chosen to defend Prop 8, they would have standing. If Prop 8 is struck down, they would have “suffered an injury in fact” and it would have been “particularized” and “actual” and “imminent.” That injury, of course, is that they would be charged with officially licensing marriages their State Constitution was amended to explicitly not recognize.

However, since the governmental officials of California have chosen NOT to defend Prop 8, and in fact have stated that they AGREE it conflicts with the U.S. Constitution, the role of defending Prop 8 has fallen to its principal proponents.

If they lose, and Prop 8 is overturned, what injury do they suffer? They aren’t forced to license and make official the homosexual marriages themselves.

Granted, they will be forced to endure the legality of homosexual marriages in their State which they find morally objectionable, but is that a “concrete and particularized injury” in fact? Citizens have no responsibility to enforce Prop 8, or to officiate same-sex marriages if Prop 8 is overturned. Those responsibilities belong to state officials, all of whom decline to defend Prop 8.