Who has the right to bring a lawsuit in federal court? One might think this is a universal American right, like the right to free speech. But, like the limits on the First Amendment that prevent citizens from feeling privileged to shout "'fire' in a crowded theater," the right to bring your suit in a federal court of law is likewise limited. It is limited by the legal concept of "standing."
Suddenly, standing to sue is an idea that is important to many not even considering legal action. It is now a key issue in the California Proposition 8 same sex marriage case, Perry v. Schwarzenegger. After the decision by the U.S. District Court was handed down, the proponents in the case moved the same court to stay the return of same sex marriage in the state. Judge Vaughn Walker considered the stay motion and denied it. The stay was then re-instated by the federal court of appeals, the 9th Circuit.
In his motion denying the stay, Judge Walker wrote that he doubted the proponents (and appellants) in the case would have standing to appeal the case. In their Order overturning Judge Walker's Order, a 3-judge panel of the 9th Circuit also asked the proponent/appellants to brief the court on the issue of standing in their first papers to that court, now due in September.
So what is this issue? Is it reasonable that some may be allowed bring a suit and some may not? Erwin Chemerinsky, constitutional scholar and Dean of the School of Law at U.C. Irvine, wrote a recent article on the issue for the Los Angeles Times. In it, Dean Chemerinsky explains the concept this way. Article III of the U.S. Constitution says the U.S. federal courts are limited to deciding "cases" and "controversies." The courts have developed the law to interpret 'case or controversy' to mean one in which the plaintiff (party suing) has suffered a direct, concrete injury.
In the Perry case, the courts will have to ask whether or not the proponents would suffer a concrete injury if gay marriage were to resume in California. A philosophic injury or a strong affront to one's beliefs is not enough rate as a concrete injury. For example, Dean Chemerinsky cites a case in which the Supreme Court found no party had standing to challenge the George W. Bush Administration's grant of funds to religious institutions to provide social services. The Court found that no one was actually injured, even though they claimed a violation of the establishment of religion clause of the First Amendment.
In this case, the supporters of same sex marriage would argue it is only they who wish to marry and cannot, who have received a direct injury. One federal court has agreed. We may not learn if one more will, if the issue of standing to sue becomes a roadblock to a decision on the merits by the court of appeals.