An opponent of Proposition 8 demonstrates in San Francisco before a ruling… (Wally Skalij, Los Angeles…)
The California Supreme Court will hear arguments Tuesday on whether conservatives who sponsored Proposition 8 are entitled to appeal last year's federal ruling that overturned the 2008 same-sex marriage ban.
The court's ruling, due 90 days after argument, will determine whether all initiative sponsors in California are legally entitled to defend their measures in state court when the governor and the attorney general refuse.
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," said Vikram Amar, UC Davis constitutional law professor.
"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.
Gay rights groups want the state high court to deny standing to backers of ballot measures. That could avoid a constitutional showdown on Proposition 8 that gays might lose before the U.S. Supreme Court. The League of Women Voters has urged the California court to deny standing to initiative sponsors, as has Atty. Gen. Kamala Harris.
But several others groups, including some that have sponsored initiatives, have called on the court to protect the initiative process by ensuring that elected officials cannot override the will of the voters.
Gerald Uelmen, Santa Clara University professor and expert on the state Supreme Court, noted that the California high court has long given initiatives "an exalted" status and would be unlikely to permit initiatives to be overturned simply because state elected officials refused to defend them.
The current court, which is moderately conservative, "hasn't put any reasonable limits" on initiatives and gives them "every benefit of every doubt," Uelmen said.
From the court's perspective, "it would just be unacceptable to permit a total nullification of an initiative by virtue of the attorney general's refusal to defend it," he said.
Proposition 8's fate is in the hands of the federal courts, which must decide whether ProtectMarriage was legally entitled to appeal the order overturning the measure. California's governor and attorney general refused to appeal or defend the measure.
The U.S. 9th Circuit Court of Appeals asked the California court to clarify whether state law gives initiative backers special status to defend measures in court, but the appeals court won't be bound by what the California court determines.
Still the appeals court could use the state ruling to buttress a finding that Proposition 8's backers also have standing under federal law.
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.
Both Santa Clara's Uelmen and UC Davis' Amar said they would not be surprised if the U.S. Supreme Court ducked the constitutional issues by denying standing to ProtectMarriage and avoiding a ruling that would affect the rest of the country.
"That way they would let the issue percolate the way they want to before stepping in," Amar said.
Tuesday's hearing will be the fourth time the California Supreme Court has heard a same-sex marriage case. In May 2008, the court ruled, 4 to 3, that California's ban on gay marriage violated the state Constitution. Proposition 8 passed six months later, reinstating the ban.
The state high court later ruled, 6 to 1, that Proposition 8 was a valid amendment to the state Constitution.
Supporters of gay marriage rights quickly turned to the federal courts, arguing that the ban violated the U.S. Constitution. Chief U.S. District Judge Vaughn Walker, who has since retired, held a trial on the arguments made by Proposition 8's sponsors and ruled in August 2010 that the measure violated the U.S. Constitution.