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Prop. 8's day in court

The California Supreme Court's ruling on standing means the same-sex marriage initiative will be adjudicated on its merits. It should once again be found unconstitutional.

November 18, 2011

Advocates of same-sex marriage in California suffered a setback Thursday when the state Supreme Court ruled that proponents of Proposition 8 had standing to defend the ballot measure in court. Had the court ruled the other way, a federal appeals court that had sought the state court's advice might well have dismissed the case. That would have left intact — at least in the absence of a U.S. Supreme Court appeal — District Judge Vaughn R. Walker's powerful ruling that Proposition 8 violated the Constitution's guarantees of due process and equal protection of the laws.


Thursday's decision did not address the merits of the arguments that the U.S. 9th Circuit Court of Appeals is considering. It addressed only the procedural question of standing. Now the case will move back to the substantive issues. In one sense, that is desirable. It would be a far greater triumph for marriage equality if the 9th Circuit rejected Proposition 8 on the merits rather than on the issue of standing.

Thursday's decision was animated by one principle: that an injustice is done when no one is allowed to defend an enactment of the people in court. Referring to the fact that neither then-Gov. Arnold Schwarzenegger nor then-Atty. Gen. Jerry Brown would defend Proposition 8, the court said: "It is essential to the integrity of the initiative process … that there be someone to assert the state's interest in an initiative's validity on behalf of the people when the public officials who normally assert that interest decline to do so."

This page had been skeptical of the propriety of allowing private groups to defend Proposition 8, though we argued that the state should appoint an outside lawyer to defend it. Like the court, we thought the initiative — which we strongly opposed — deserved its day in court. Now it will have it. Theoretically the 9th Circuit could reject the California Supreme Court's advice on standing, but lawyers for Proposition 8 opponents think that's a virtual impossibility.

So the 9th Circuit will consider the case on the merits, which are overwhelmingly against the proposition. As Walker pointed out in his decision: "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples."

The dispute over standing is dramatically overshadowed by that injustice. The 9th Circuit should rule clearly and forcefully that Proposition 8 is unconstitutional.

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