In Judge Walker's decision to life the stay on Gay Marriages in California, he doubted that the proponents had standing to appeal the case any higher. When the stay was reimposed by the Ninth Circuit and the case was put on the fast track, it ordered the appellants and respondents to address the question of standing up front. I am neither, but I am going to throw in my two cents on this question. I will say why below the fold.
Some commentators have said that they don't believe it is just to allow the proponents of Proposition 8 to defend the initiative and then go no further. I disagree for two reasons.
The first is that there are different rules of standing for appellant cases. I will let counsel deal with them and I suspect the decision will be made based on these rules.
The second is actually more important. I don't believe they should have standing because I don't believe they should have been allowed ballot access in the first place to advance an initiative reversing the civil rights of anyone to marry (or do anything else - including giving money to political campaigns). The rights of individuals should not be put to a vote or limited by the legislature. This is, or should be, the lesson of this case and its way bigger than simply the right to marry - which is important as well (since marriage is an essential part of family law - it is how you start a new family and more importantly, how you leave your family of origin - and no one should be condemned to their family of origin forever when one group can opt out and another can't because of sexuality).
My hope is that by raising this issue in the briefs that it will go forward all the way to the SCOTUS, along with the extant issue of marital rights and that the question of whether ballot actions may be brought discriminating against group or individual rights is addressed and dealt with appropriately. The result could be no more of these nuissance and noissome ballot initiatives. It would send the correct message to all those populists who wish to demagogue the rights of women, gays, immigrants, Catholics, Muslims and six-toed tobacco chewers - DON'T!
Notice I included the question of campaign finance. Once Buckley v. Voleo stated that money is speech, the correct course was not new and different campaign finance legislation. None of it has survived and efforts to set a good example by the Greens and by John McCain have simply resulted in underfunded and losing campaigns. The only way out of money as speech, and the most appropriate as well, is a clarifying constitutional amendment. While the Article V Convention crowd will probably propose one, the dyanmics of local party activity show why no such convention will ever bear fruit - because the local Assembly Members and the local members of Congress all sit on the same party committees - not because of gerrymandering but because of voter overlap. While it is possible to get 2/3rds of states without getting 2/3rds of Congress, its not bloody likely, so such an amendment should be an electoral issue - and those who want to change the status quo must start demanding electoral positions on such an amendment. It won't happen any other way.