Yes, it is certainly true that the automatically generated panel will be critical to the case.
Here is what Walker had to say about the standing issue:
To establish that they have standing to appeal the court’s decision under Article III, Section 2 of the Constitution, proponents must show that they have “suffered an injury in fact, which is fairly traceable to the challenged action and is likely to be redressed by the relief requested.” Didrickson v United States Dept of Interior, 982 F2d 1332, 1338 (9th Cir 1992). Standing requires a showing of a concrete and particularized injury that is actual or imminent. Lujan v Defenders of Wildlife, 504 US 555, 560 (1992). If the state defendants choose not to appeal, proponents may have difficulty demonstrating Article III standing. Arizonans for Official English v Arizona, 520 US 43, 67 (1997).
As official proponents under California law, proponents organized the successful campaign for Proposition 8. Doc #708 at 58-59 (FF 13, 15). Nevertheless, California does not grant proponents the authority or the responsibility to enforce Proposition 8. In Lockyer v City & County of San Francisco, the California Supreme Court explained that the regulation of marriage in California is committed to state officials, so that the mayor of San Francisco had no authority to “take any action with regard to the process of issuing marriage licenses or registering marriage certificates.” 33 Cal 4th 1055, 1080 (2004). Still less, it would appear, do private citizens possess authority regarding the issuance of marriage licenses or registration of marriages. While the court has ordered entry of a permanent injunction against proponents, that permanent injunction does not require proponents to refrain from anything, as they are not (and cannot be) responsible for the application or regulation of California marriage law. See Cal Health & Safety Code § 102180. The court provided proponents with an opportunity to identify a harm they would face “if an injunction against Proposition 8 is issued.” Doc #677 at 7. Proponents replied that they have an interest in defending Proposition 8 but failed to articulate even one specific harm they may suffer as a consequence of the injunction. Doc #687 at 30.
When proponents moved to intervene in this action, the court did not address their standing independent of the existing parties. See Doc #76 at 3; see also Perry v Proposition 8 Official Proponents, 587 F3d 947, 950 n2 (9th Cir 2009). While the court determined that proponents had a significant protectible interest under FRCP 24(a)(2) in defending Proposition 8, that interest may well be “plainly insufficient to confer standing.” Diamond v Charles, 476 US 54, 69 (1986). This court has jurisdiction over plaintiffs’ claims against the state defendants pursuant to 28 USC § 1331. If, however, no state defendant appeals, proponents will need to show standing in the court of appeals. See Arizonans for Official English, 520 US at 67.
Proponents’ intervention in the district court does not provide them with standing to appeal. Diamond, 476 US at 68 (holding that “Diamond’s status as an intervenor below, whether permissive or as of right, does not confer standing to keep the case alive in the absence of the State on this appeal”); see also Associated Builders & Contractors v Perry, 16 F3d 688, 690 (6th Cir 1994) (“The standing requirement * * * may bar an appeal even though a litigant had standing before the district court.”). The Supreme Court has expressed “grave doubts” whether initiative proponents have independent Article III standing to defend the constitutionality of the initiative. Arizonans for Official English, 520 US at 67.
Proponents chose not to brief the standing issue in connection with their motion to stay, and nothing in the record shows proponents face the kind of injury required for Article III standing. As it appears at least doubtful that proponents will be able to proceed with their appeal without a state defendant, it remains unclear whether the court of appeals will be able to reach the merits of proponents’ appeal. In light of those concerns, proponents may have little choice but to attempt to convince either the Governor or the Attorney General to file an appeal to ensure appellate jurisdiction.
There is one other wild card in the standing issue. Imperial County made a motion to intervene in the case as a defendant, and Judge Walker denied that motion. There is, I believe, a separate, related appeal from Imperial County on that ruling. It's possible that that could alter the standing equation.
"Spirits in the shape of hawks and eagles flew ever to and from his halls; and their eyes could see to the depths of the seas, and pierce the hidden caverns beneath the world."
But that helps me understand why some people feel like it would threaten their marriage to have gays/lesbians marry, because gay marriage would weaken the traditional concept of "roles" within a marriage.
