Why Perry v. Schwarzenegger is unlikely to reach the US Supreme Court if we win

For a few months now, I have known about the potential that Perry v. Schwazennegger may not reach the US Supreme Court due to a standing problem that only the sharpest of the legal eagles picked up on, but I was not certain until Judge Walker denied a particular motion.

The good news is: Prop 8 will be struck down and marriages will be resuming if not next week, than in the next few months.   The bad news is, SCOTUS will likely not take the case if we win (not that that is neccesarily a bad thing, as we can still hit SCOTUS if Perry/AFER wins).

Here is why….

Plaintiff's Opposition to Motion for a stay

Read pages 5, 6, and 7.  Under Diamond v. Charles and Arizonans for Official English v. Arizona, the Proposition 8 Proponents (the Defendant-Intervenors) have do not have what is called “Article III” beyond the trial court.  Only GOVERNMENT intervenors have the ability to appeal.

San Francisco's Motion to Intervene Response

Imperial County's attempt to Intervene

You see, The Proposition 8 Proponents realized that they screwed up royally.   They didn't realize until months after AFER filed their case that they had no standing to appeal the case because they were not governmental intervenors under the Diamond and Arizonans for Official English Supreme Court cases.  

That is why they called up the Imperial County Board of Supervisors and asked them intervene.  Judge Walker finally ruled the day he released the Perry decision to deny Imperial County's motion.

You can see the entire Perry docket here.

By filing the motion to the court today to point out the elephant in the room, that the Proposition 8 Proponents have no standing on appeal by themselves without a governmental entity appealing on their behalf, AFER and San Francisco just publicly decapitated Yes On Eight's standing.

Yes there will be appeals, and yes AFER should get ready to take it to SCOTUS and should not rest on it's laurels and make the best case possible for equality as high as it will go, but the chances of this getting to SCOTUS just went from 100 percent certainty to less than 20 percent as soon as they filed that motion.  Remember, AFER's job with suing over Prop 8 was to get the plaintiffs (as well as anyone similarly situated who resides or visits California) marriage licenses.  As attorneys, not pointing out that the Yes on 8 doesn't have appellate standing would be a dereliction of their duty as the attorneys for the two couples.  They want to win for them, as well as striking down Article 1 Section 7.5 of the California Constitution so that everyone in California can enjoy the right that was taken from them bigoted voting majority in November 2008….

Never fear, however. AFER can always file in another state.   This goes to show that AFER plays three dimensional chess while the opponents to our equality play checkers.  I hear Washington and Oregon is nice this time of year…..

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—  John Wright