Prop 8 Case May Be Tossed Out on a Technicality


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.

DOES IT FEEL LIKE POLITICS IS AT A BREAKING POINT?

Headshot of Editor in Chief of Mother Jones, Clara Jeffery

It sure feels that way to me, and here at Mother Jones, we’ve been thinking a lot about what journalism needs to do differently, and how we can have the biggest impact.

We kept coming back to one word: corruption. Democracy and the rule of law being undermined by those with wealth and power for their own gain. So we're launching an ambitious Mother Jones Corruption Project to do deep, time-intensive reporting on systemic corruption, and asking the MoJo community to help crowdfund it.

We aim to hire, build a team, and give them the time and space needed to understand how we got here and how we might get out. We want to dig into the forces and decisions that have allowed massive conflicts of interest, influence peddling, and win-at-all-costs politics to flourish.

It's unlike anything we've done, and we have seed funding to get started, but we're looking to raise $500,000 from readers by July when we'll be making key budgeting decisions—and the more resources we have by then, the deeper we can dig. If our plan sounds good to you, please help kickstart it with a tax-deductible donation today.

Thanks for reading—whether or not you can pitch in today, or ever, I'm glad you're with us.

Signed by Clara Jeffery

Clara Jeffery, Editor-in-Chief

We Recommend

Latest

Sign up for our newsletters

Subscribe and we'll send Mother Jones straight to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate

Share your feedback: We’re planning to launch a new version of the comments section. Help us test it.