For what seems like the first time, the legal battle over California’s Proposition 8 follows simple common sense.  On August 4, 2010, Judge Vaughn Walker overruled Proposition 8 in Perry v. Schwarzenegger.  The State of California has chosen not to appeal Walker’s decision, leaving other opponents of gay marriage to appeal the decision for themselves.  On August 16, 2010, the Ninth Circuit Court of Appeals ordered that Walker’s decision be stayed until it decides whether the ban on gay marriage is constitutional, meaning that gay couples in California will not be able to get married for some time to come.

Although the Ninth Circuit Court has set a briefing schedule, it appears that the Court is reluctant to hear the case.  Because the appeal is not being brought by Governor Schwarzenegger, a named defendant in the case, or by other California officials but by a group of private citizens, the Ninth Circuit Court of Appeals has specifically instructed the appellants to brief the Court on their Article III standing to bring the appeal.

The Court’s instructions signal that the Court is concerned that Proposition 8 proponents have not suffered an injury in fact, and thus cannot appeal the case.  Standing under Article III of the U.S. Constitution requires that a party be injured and that the injury can be traced to the actions of the challenged party.

By asking the appellants to brief it on their standing, the Ninth Circuit signaled that it is having difficulty understanding how this group of private citizens has been injured by Walker’s pro-gay marriage decision.  In other words, the Court is concerned that gay couples’ ability to marry does not produce an injury.  Or put another way, the Court has essentially determined that gay marriage does not injure straight marriage.  In fact, 80 facts that Proposition 8 proponents advanced at trial to prove that gay marriage is injurious were all discredited after testimony and evidence were fully presented.

Some supporters of gay marriage believe that the Ninth Circuit should take the appeal, hoping that the case will eventually reach the U.S. Supreme Court.  These people believe that the question of gay marriage must and will ultimately be decided by the high Court.  Others, however, are concerned that the conservative court may rule against gay marriage.

There is also concern that if the Ninth Circuit decides that the appellants have no standing, the Court will also reevaluate whether these citizens had the right to represent California at the trial level.  At trial, California’s Attorney General, Edmund G. Brown, Jr., another named defendant in the case, did not litigate the case, leaving the litigating in the hands of other private groups instead.  It is possible that the Ninth Circuit’s finding against these people’s standing could invalidate the trial and Walker’s decision with it.

Though it is uncertain how the case will proceed from here, it is clear that proponents of Proposition 8 have their work cut out for them.  They must prove, against all evidence and common sense, that gay marriage would produce an injury to them.  It would be terrible if their failure to do so would dismiss Walker’s judgment altogether, but there would still be a small victory in showing the country that gay marriage is not harmful.