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August 13, 2010


Douglas Kmiec

However, didn't Judge Walker deny Imperial County California's petition to intervene and the County at the direction of its supervisors -- unlike the Governor and the AG -- apparently desire to enforce Prop 8 and perhaps arguing that the county has some latitude in how sweepingly Prop 8's invalidity should be interpreted and administered at the county level? If true, Judge Walker may have mistakenly excluded a local government which believes, unlike the Governor and the AG, that were Prop 8 found to be valid, as public officials they would have a duty of enforcement, whether they personally approved of the policy supported by the County supervisor or opposed it. Separately, some academics argue that with Proposition 8 invalid, the public policy of the national and by incorporation state governments is now nondiscrimination against gays even if the claim of discrimination arises in a religious context. The Court's decision in Bob Jones suggests a basis in racial precedent to argue the oublic policy point by analogy; and thus, religious bodies persisting in excluding gays and lesbians from church privileges would be argued to be ineligible for public tax exemptions or other public benefits such as member charitable deduction. The potential or imminent loss of these valuable public economic subsidies might then be persuasively argued to be sufficient for Article III standing. The absence of injury in fact not in fact absent under either scenario, why would Judge Walker indulge a rigid conception of standing, especially when the standing determination by the Supremes has likely passed from the hands of Chief Justice Ronerts or Justices Alito, Thomas, or Scalia. More relevant is not what these four do but what becomes of standing in light of the ascension of Associate Justices Kagan and Sotomayor, especially when the the pro-standing voicss of Justices Breyer and Ginsburg suggest an inclusive quartet, and possibly a Kennedy concurrence to make five votes in favor of standing when the author of the plurality in Lawrence v. Texas is accounted for.

Professor Kmiec, submits this observation solely to put these questions to a diverse, inter-religious cross section for discussion These commentss are for academic discussion only and in no way reflect or specify the view of the President, Secretary Clinton, or for that matter, myself.

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