It’s been an axiom of the Proposition 8 battle that the legal struggle would include the District Court, where it was just declared unconstitutional, the Appellate Court, and then the Supreme Court.
Now, some legal experts are saying the Appellate Court may not hear the case, since there is nobody with legal standing to bring the appeal! The State of California has refused to defend Proposition 8, and there may be nobody the Appellate Court will recognize as having authority to file an appeal!
Lambda Legal’s Jon Davidson is quoted at Joe.My.God:
Federal courts can only hear cases where there is what’s called a “case or controversy.” They can’t issue advisory opinions about issues just because parties may have an abstract dispute with one another. Rather, in order to be able to pursue an appeal, a party has the burden of showing that it has “a direct stake in the outcome” and has been injured by the ruling in a concrete manner that is particularized to that party and different from citizens at large who may not like the judge’s ruling. In a previous case, the U.S. Supreme Court said it had “grave doubts” about whether proponents of a ballot initiative limiting government action who had been allowed to intervene in a case can pursue an appeal when the initiative has been found unconstitutional and the government does not appeal.
The courts could very well rule that no entity except the State of California has the right to appeal, and California has refused to defend the case! This could be the end of Prop H8!