No matter what the California Supreme Court eventually decides about Proposition 8, both its liberal and conservative justices voiced one important take-home lesson with great clarity and conviction: Democracy is thwarted when no one defends the will of the people.
At issue in last week's oral arguments was whether the proponents of Proposition 8 have the legal standing to defend the measure at the appellate level in federal court. The governor and attorney general have refused to do so.
Make no mistake, Proposition 8 should die in the courts. But it should fail on its merits — its discriminatory withholding of the right to marry — rather than because the officials who could have defended it wouldn't and no one else was allowed to step in. As Justice Joyce L. Kennard put it, voicing concerns about the integrity of the initiative process, denying Proposition 8 a defender during appeal would be "nullifying the great power that the people have reserved for themselves."
In the federal trial, the court allowed ProtectMarriage, an organization that supports Proposition 8, to defend the 2008 initiative. The ban on same-sex marriage was found unconstitutional. But during the appellate phase, the defense typically must be made by a party that is directly affected by the outcome. The federal court asked California's high court justices to clarify state law on the matter before it decides whether ProtectMarriage has standing.