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Editorial

Prop. 8's best defense

California should be required to hire an attorney to defend Proposition 8 on appeal. The anti-gay-marriage measure's constitutionality is for the courts to decide, not state officials.

September 12, 2011

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.

The problem for ProtectMarriage is that it wasn't directly affected by the court's ruling. It wasn't sued — the state was. And the judge in the federal trial ruled that same-sex marriage would have no effect on the traditional institution of heterosexual marriage, so supporters cannot say the court ruling changed their lives in any measurable way.

How then can California voters, a majority of whom voted in favor of Proposition 8, have their day in court? Not, as ProtectMarriage's lawyer argued, by deciding that a citizen group that supports the initiative is somehow vested with the state's authority to defend a measure.

The voters entrust elected officials with the responsibility of acting on their behalf. Private groups might or might not actually represent the voters' will; they might or might not be located or funded within the state, or even be qualified to argue in court.

If state officials are unwilling to stand up for Proposition 8 — or believe that their ability to do so is compromised because they openly opposed the initiative, as Jerry Brown has as governor and previously as state attorney general — the state should be required to hire an attorney to provide the best possible defense. The constitutionality of Proposition 8 is for the courts to decide, not state officials.

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