The long line of people sleeping under plastic tarps already snaked around the block at the Supreme Court Monday as hearty individuals hoped to secure seats for today's arguments on marriage equality. But all the Dunkin' Donuts coffee in the world might not be enough to energize the line-holders for the OTHER issue the court will discuss today.
When the court agreed to hear the case on California's Proposition 8, it asked both sides to argue not only the merits but a threshold question that could block the court from ever reaching the merits.
The so called "jurisdictional issue" will most likely include incredibly technical exchanges at court, but they are vital to the justices.
Federal courts want to hear real cases and controversies brought only by those people who are properly in front of the court.
Keep in mind that Proposition 8 is being defended by the original proponents of the ballot initiative - ProtectMarriage.com - because California officials declined to appeal the lower court opinion that struck down the initiative.
That's why the Supreme Court asked parties to file briefs on whether ProtectMarriage.com has the "standing" - or the legal right - to be in court.
Charles J. Cooper, a lawyer for ProtectMarriage.com said that the California Supreme Court "squarely held" that the proponents were authorized to assert the state's interest when public officials declined to defend an initiative. Based on the determination of the California Supreme Court, the 9th Circuit Court of Appeals held that the proponents have standing in federal court to defend Prop 8.
But Walter Dellinger, former acting solicitor general of the Clinton administration and an expert on constitutional law, filed an amicus brief with the court saying that the 9 th Circuit got it wrong. Dellinger argued that the proponents only have a "generalized interest in the enforcement" and not a concrete or particularized injury that would establish standing.
"The Constitution," said Dellinger's brief, "does not give federal courts an unrestrained power to decide every constitutional question that a party wishes to have them resolve."
Opponents of Prop 8 agree that their adversaries are not properly before the court. In briefs, they have written, "Proponents have never contended - and do not contend before this Court - that they would personally suffer any injury if gay men and lesbians were permitted to marry in California."
If the court finds that that the proponents of Prop 8 do not have the legal right to be in court, most experts believe that the 9th Circuit Court of Appeals ruling would be vacated and that the District Court decision that struck down Prop 8 on broad grounds would stand. Although legal experts are divided about the scope of the district court's injunction, most experts believe gay marriages would resume in California, although the timing is unclear.