After my run this morning, I headed down to the SLO Clerk-Recorder's office to see if I could help anyone out and to see what my County was going to do.
I sat in the lobby listening to the radio on my phone waiting for the decision. We heard "MOTION DENIED" at about 12:15 p.m. About 20 minutes later, it was announced that the stay was still in effect until the 18th. I went home. There's a lot of talk about the stay today and the standing issue. I've been very conflicted on whether the standing issue will be helpful. In the short term, perhaps. In the long term, I think it only delays the inevitable and could create a big snafu.
The night before the Prop 8 decision was announced, I commented that I thought that aspects of this case would allow for it to apply to California only. In the discussion following the ruling, I reiterated that point. Then the standing issue arose—it presents that exact dilemma.
It is—in effect—away of the courts backing out of this issue and leaving California in the status quo ante of In re marriages prior to Prop 8's passage. This is possible because all of the state parties in the case will not appeal. You can read an in depth take on the standing issue here.
Remember Newdow the pledge of allegiance "under God" case? The Supreme Court really stretched and held that it didn't have to rule on the case because Newdow didn't have the right kind of custody of his daughter. Total punt.
There's a huge temptation for the courts to stay out of issues they don't want to be in. They write a lot about "Article III" and "standing" but what that means is, "we don't want to go out on a limb either way if we don't have to." It is tempting for both marriage equality proponents and opponents to agree to this, say, well, we won in California (or, we lost in godless California, big whoop). It would be tempting, but the result would not end the war, it would only be a temporary ceasefire, and it could ultimately cause great pain.
Let me explain: this case could be renamed "Helen" because it will launch a thousand ships. I would not be surprised if it causes cases to be filed all over the country on this issue. The Supreme Court will not be able to stay out of it forever. And if they go against marriage (god forbid) because they, say, get presented with a case that doesn't have this strong of a record, or this strong of a team of advocates behind, things get complicated.
Could the marriages get vacated? Yeah, I don't know the answer to that. People who believe that the appellate courts can't just do what they want haven't been paying attention. Remember George W. Bush? Trust me: never say never. They might be reluctant to upset those who have already been married, and this may weigh against them and the result might end up being like the California Prop 8 case.
I'm very conflicted on this issue. If I believe that the courts' finding no standing would settle the issue for California once and for all, I would be very tempted to think that was great (sorry, nation), but I'm afraid that it won't "once and for all."
I'd love to hear what people think about this.
Thanks (=
UPDATE:
Just to clarify, there has been no ruling on the standing issue on appeal. That's—wait for it—for the Court of Appeals (and perhaps the Supremes). The judges comments today were assessing what he thought were the chances of success on appeal for purposes of deciding the motion for a stay pending appeal; in other words, he made no ruling on that issue (and can't, really—he's not in the Court of Appeal).
But it has been served up to the higher courts on a silver platter now if they want to take it.