"Such a victory for gay rights," Will concluded, "grounded on constitutional values, and hence cast in the vocabulary of natural rights philosophy, would at least be more stable than one resting uneasily on the shiftable sand of premature social science conclusions.”
Will's musings presuppose, in the case of California's Proposition 8, at least, that the court actually does make a decision on the merits of the case.
This is not a given, argues legal analyst Linda Greenhouse at the Washington Post.
Greenhouse focuses on the paradox that gay rights advocates are hoping that an ad hoc group fighting gay marriage will be granted "standing" by the court to represent the state of California in the Proposition 8 battle.
Standing is a judicial requirement that to do battle in court you have to demonstrate that you have been directly affected, or "injured," by the matter at hand.
After California decided not to defend its own law, a private group took up the battle, but if the court finds that this group lacks standing, then it could refuse to decide the case. This would confirm the status quo in California, with gay marriage legalized, but not create any sweeping changes across the nation.
Thus the paradox: gay marriage advocates want gay marriage opponents to win standing so that the court, led by Kennedy, can make a sweeping ruling.
"I happen to think the Proposition 8 supporters don’t have standing," Greenhouse wrote, "and that the justices will dismiss the appeal without reaching the merits. That would leave intact Judge Walker’s 2010 decision that Proposition 8 is unconstitutional."
Eric Schulzke writes on national politics for the Deseret News. He can be contacted at email@example.com.
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