But in the end, do we really want gay marriage to become legal in California because of what’s essentially a technicality? That seems a highly unsatisfying resolution to what was always billed as an epic case, and it would expose in the left a bit of hypocrisy about standing much as it would the right.
Answer: yes, that’s precisely what I want.
If the Prop 8 is dismissed for lack of standing, then that means that gay marriages will be legal in California. It will move the cause forward. We will see gays and lesbians get married, with the end of the world not occurring.
And most importantly, it will mean that all of this can occur without worrying about what Anthony Kennedy will feel like when he wakes up in the morning. Kennedy has been sympathetic on issues of gay rights: after all, he wrote Romer and Lawrence. But taking this case to the Supremes means asking him to hold that gay marriage is mandated across the United States. He doesn’t want to do that: that’s why he wrote Romer narrowly, without squarely facing the issue of review standard for sexual orientation discrimination. It’s too much of a risk to force him into this kind of position.
Bazelon rejects this. “Isn’t it odd,” she asks, “to think that a majority of the voters could pass a law, and then just because the governor and the attorney general don’t like it, no one gets to stand up for it on appeal? Especially after they’ve been allowed to do so at trial?”
Well, yes — it is odd. And you know what? Courts do this all the time. The Supreme Court in Brown v. Board of Education did not rest its decision on the equality principle, but rather a bunch of social science research concerning educational outcomes. And you why that was? Because the justices knew that if they wrote the decision more broadly, they would have to come to grips with — irony alert — anti-miscegenation laws. And they knew that the time wasn’t right for that. That actually is what standing is really about.
I’m no fan of restrictive standing, and think that constitutionalizing it is a terrible idea. But I’ll take it. That’s the way progress works. And if this causes conservatives to become enraged at restrictive standing rules, we can’t say we didn’t warn you. Maybe your friends like Chief Justice Roberts can actually do something about it.