Brody's Notes... California High Court To Hear Arguments By Prop 8 Supporters

California Supreme Court Building

By Brody Levesque | SAN FRANCISCO, CALIFORNIA -- California's Supreme Court is scheduled to hear oral arguments Tuesday on the matter of whether or not the conservative backers of Prop 8, specifically Protect Marriage.com, have legal standing and entitlement to defend the law that eliminated by popular vote in a ballot referendum same-sex marriage in the state, which was overturned by a U. S. District Court Judge last year.

Former California governor, Arnold Schwarzenegger,(R) and current Governor Jerry Brown,(D), who at the time was California State Attorney General, both declined to defend the measure in federal court against a lawsuit brought by same-sex couples who contended that Prop 8 was not only unconstitutional, but discriminatory against same-sex couples relative to the legal benefits enjoyed by married heteronormal couples but denied same-sex couples.

Vikram Amar, a University of California-Davis constitutional law professor told the Los Angeles Times:

"If the court rules against the initiative backers, then a federal appeals court is more likely to rule that ProtectMarriage.com, the sponsor of Proposition 8, also lacks standing under federal law and "Proposition 8 dies because no one will defend it

I don't think it is open-and-shut either way," Amar said. "If sponsors of initiatives don't have standing, then you have the possibility that elected officials like governors and attorneys general can essentially undo an initiative by refusing to defend it.

"On the other hand, giving initiative sponsors the right to defend their measures when state officials refuse is also problematic he said. "Just because someone sponsors an initiative doesn't mean they are good representatives of the voters, because the voters never chose the sponsors," he said."

The California High Court's ruling, which is expected within 90 days after hearing arguments, determines whether all initiative sponsors in California are legally entitled to defend their measures in state court when the governor and the attorney general refuse.

The U.S. 9th Circuit Court of Appeals had asked the California Supreme Court for a legal clarification determining if the state's law gives initiative backers legal status to defend Prop 8, but the Ninth Circuit will not be bound by what the California high court rules.

Legal analysts note that the federal appeals court would be able to determine a finding that state legal standing in the matter would apply in the federal case.

The LA Times also notes:

Strict legal rules about who has standing — the right to pursue a case — have ended many high-profile constitutional disputes in federal courts. Federal judges in recent years have embraced the narrow use of standing to limit the kinds of cases that can be brought. Under federal law, a person must have suffered an actual injury, among other requirements, to have standing in court. California courts have been more flexible in granting standing.

If the 9th Circuit determines that ProtectMarriage has standing, a three-judge 9th Circuit panel is likely to overturn Proposition 8 on constitutional grounds, and the case will probably then go to the U.S. Supreme Court. But the U.S. Supreme Court could reject the appeal on grounds of standing, limiting the case's effect to California.