Gay marriage is off again

Gay marriages were put on hold in California again this week, when a federal appeals court stayed a lower court’s ruling allowing same-sex nuptials to go forward. The appellate court in San Francisco placed a temporary hold on Judge Vaughn Walker’s ruling last week that the voter-approved ban on gay marriages, Proposition 8, had no “rational” justification and violated the U.S. Constitution’s due process and equal-protection guarantees.

Without commenting on the merits of Walker’s decision, the appeals court ordered Prop 8 supporters to demonstrate why they had the standing to pursue the case. California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown, the named defendants in the matter, have declined to appeal, and Prop 8 supporters must now show they would suffer harm if the ruling stands. The appeals court scheduled oral arguments for Dec. 6.

Contrary to all expectations, this case may never reach the U.S. Supreme Court, said Lyle Denniston in the legal website SCOTUSblog.com. Only “someone who can make a plausible claim that they have suffered a legal injury or wrong” has standing to sue. That’s a high bar for Prop 8 backers, whose own, presumably heterosexual, marriages are in no danger of being banned. No standing, no appeal.

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Lawyers for Prop 8 backers hope to sidestep the question of standing, said Michael Lindenberger in Time.com. They’ll instead contest “the starting point of Walker’s ruling,” which is that “moral condemnation alone cannot justify the denial of rights to citizens.” To the contrary, goes this argument, morality has a time-honored, legitimate role in legal disputes.

The real problem is that this question is before the courts in the first place, said John Yoo in The Wall Street Journal. Walker short-circuited “the Constitution’s traditional system for social change,” which is to let the states work things out for themselves. If you thought the Roe v. Wade abortion-rights ruling was divisive, imagine the fallout if the Supreme Court “prematurely nationalizes gay marriage.”