Prop 8 Case May Be Tossed Out on a Technicality

| Tue Mar. 26, 2013 11:04 AM EDT

TPM's Sahil Kapur tweets about today's Supreme Court hearings over Proposition 8, the California initiative that bans gay marriage:

Just left Prop 8 case. Justices were very skeptical that the case even has standing. Flirted with throwing it out....There was a spirited debate on the merits as well. If they rule, it's too close to call. Kennedy divided, Roberts leaning for Prop 8....Roberts, Alito seemed especially eager to throw out Prop 8 case. Kennedy, Breyer, Sotomayor, Ginsburg also skeptical. Scalia wanted to rule.

I hate this. Technically, there's an argument to be made that backers of Prop 8 don't have proper standing to sue in this case. And it's easy to say that this would be a fine example of conservatives being hoist by their own petard, since, as Erwin Chemerinsky has pointed out, they're the ones who have been so eager in the past to deny standing in cases involving civil rights, environmental protection, and the separation of church and state.

But this is a case in which lack of standing is purely artificial. The state of California, which would normally be on the hook to defend its own laws, has declined to do so. This decision means that a properly enacted constitutional amendment literally can't be defended in court, and that's just wrong. Like it or not, half the state voted for Prop 8, and one way or another, their interests deserve their day in court.

This is hardly the first case like this. National security cases get tossed out all the time on Catch-22-like grounds. But that doesn't mean I have to like it. Someone should have standing to defend Prop 8, and the case should be decided on its merits. The law may be an ass, but it should at least try not to be a coward.