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More on the CA Sup. Ct.’s Prop 8 "standing" ruling

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My reaction to the "standing" decision today is that I have never been so disappointed to have been right. As a practitioner, one cardinal rule I have is that the most persuasive arguments appeal to the gut and the head, not just the head. I have seen time and time again how judges find ways to rule on what they perceive to be the equities of the issue, and find a wrinkle in the precedent to get there.

Without having read the decision and at the risk of breaking another one of my cardinal rules, which is not to give an opinion until you have looked at all the crucial documents, I would venture to say that the California Supreme Court decided to find a wrinkle here. The justices likely thought that the constitutionality of Prop 8 was too important to be decided on the technicality of standing. Caveat: the standing issue isn’t quite dead yet, because the Ninth Circuit has the final say, but I can’t imagine that the Ninth Circuit would reject the advice that it sought from the California Supreme Court.

So the case will be decided on the merits. That is not an inherently bad thing. But I am nervous, because I am not as confident that we can prevail at the Supreme Court as some are. I think a fine outcome would be if the case never made it there because the Ninth Circuit decides in our favor and limits its ruling to the bizarre situation in California, where 18,000 same-sex couples can be married but others can’t. But I don’t have a crystal ball. And it would be nice to be wrong and get a sweeping opinion that encompassed the entire country.

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