Ironically, it is a legal doctrine fashioned by conservatives that may provide a decisive victory to the supporters of marriage equality for gays and lesbians and end the litigation over California's Proposition 8.
For decades, conservative justices on the Supreme Court have ruled to limit who has standing to bring a claim in federal court. In cases involving civil rights, environmental protection and the separation of church and state, the court has ordered that cases be dismissed because the party pursuing the case had no legal standing to do so.
Now, the U.S. 9th Circuit Court of Appeals — and, ultimately, the U.S. Supreme Court — could well rule that opponents of same-sex marriage have no standing to appeal U.S. District Chief Judge Vaughn R. Walker's decision striking down Proposition 8.
Article III of the U.S. Constitution restricts federal courts to deciding "cases" and "controversies." The Supreme Court long has held that in order to meet this requirement, a person or group pursuing legal action must have standing, a status conferred only on those who have suffered a direct, concrete injury. An ideological objection to a government action, no matter how strongly felt, is insufficient for standing.
For example, almost 30 years ago, the Supreme Court ruled that a person who had been subjected to a chokehold by Los Angeles police officers lacked standing to challenge the constitutionality of that procedure because he could not show that he personally would be likely to be choked again.
Just a few years ago, the Supreme Court held that no one had standing to challenge the George W. Bush administration's grant of funds to religious institutions to provide social services. The court stressed that no one was directly injured, even though there was a claim that this was an impermissible establishment of religion in violation of the 1st Amendment.
Without a doubt, the defendants in the lawsuit challenging Proposition 8, such as Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown, have standing to seek a stay of Walker's injunction and to appeal it. They have indicated, however, that they don't intend to do so.
A new governor or attorney general might want to appeal, but by January, when the new crop of state officials is seated, the filing date will have long passed, and it is hard to see how they could intervene at that point. That means the appeal will be brought by "intervenors" — supporters of Proposition 8 who entered the lawsuit in the federal District Court to defend it.
But because they are not in any way enjoined or covered by the injunction, they are not the proper party to seek a stay of it. Nor do they have standing to appeal Walker's ruling.
The Supreme Court has explicitly held that standing to appeal is required and that being an intervenor is insufficient to meet this requirement. In one case, the state of Illinois refused to appeal a federal judge's ruling striking down a law regulating abortion, and a doctor who had intervened tried to appeal to defend the law. The Supreme Court held that the doctor lacked standing and ordered the appeal dismissed.
In another case, voters who supported an Arizona initiative declaring English to be the official language of the state tried to appeal to defend the law. The Supreme Court unanimously ordered the appeal dismissed and expressed "grave doubt" as to whether supporters of an initiative have standing to appeal to defend it.
What does this mean for the litigation over Proposition 8? Walker stayed his ruling until Wednesday to allow the defendants to seek a stay from the 9th Circuit.
The appellate court may grant a stay only if it finds that the supporters of Proposition 8 have a substantial likelihood of prevailing on appeal and that there will be an "irreparable injury" if there is not a stay.
As Walker explained Thursday, the defenders of Proposition 8 are not likely to prevail because they lack standing; also, it is impossible to see what "irreparable injury" will occur if there is not a stay of the injunction and same-sex couples are allowed to marry pending resolution of the appeal.
The result of all this is likely to be that gays and lesbians will be able to marry beginning Wednesday, when Walker's temporary stay expires. There then will be consideration of the case, over the next couple of years, by the 9th Circuit and ultimately by the Supreme Court.
But if those courts follow well-established law, they will need to dismiss the appeal on grounds that those who filed it have no standing. The outcome, then, will be that marriage equality will exist in California, at least unless and until in some other case, some day, the Supreme Court comes to a different conclusion.
Erwin Chemerinsky is dean of the UC Irvine School of Law.