“Standing”

Mar 26 2013 @ 9:44pm

The best legal summary for the argument that the opponents of Proposition 8 have no standing in federal court to reverse the state court’s ruling is here – Walter Dellinger’s (pdf). A reader chimes in:

As a proud, native Californian, I’ve thought a lot about the standing question (nerdy as that is). And I think your inclination on standing misses the key point: Politics.

You say, “But if a state’s elected leadership refuses to intervene to defend a popular initiative, doesn’t that make a mockery of the entire system?”

No, it doesn’t. The elected leadership are all political actors, and make political calculations, pretty much for a living. The decisions not to defend Prop. 8 were not made casually, and each one was made knowing that that politician would be subject to future elections.

I can’t see how that’s not an incredibly important fact. “The entire system” includes the proponents and the voters, and the politicians who represent all of the people. If the politicians make a decision that is widely rejected, they run a risk of not being reelected, a risk that gets higher as the rejection of their position increases.

Our governor and attorney general, and others, made their decisions not to defend Prop. 8, and if they are wrong about that, they have put their own jobs on the line. That, too, is the system. I think they made, not only the right decision based on the principle of equal protection, but as a matter of their own political survival. But no matter what, they are accountable.

So if the court rules that this particular set of citizens doesn’t have standing to defend Prop. 8 (in federal court only, remember — they had full standing to challenge it in our state courts, and did so), it’s not as if they are without remedy. Yes, it would involve extra effort to get those damn politicians out of office, but that is the same remedy we all have, all the time. And, in California, in addition to the initiative, we also have the recall, specifically to get rid of politicians prior to the next election, if that’s what we want. We got rid of a governor that way not so long ago.