Same-sex marriage: Can Prop. 8 sponsor appeal ruling ban is unconstitutional?

The California Supreme Court heard oral arguments Tuesday on whether or not the sponsors of Proposition 8 – a ban on same-sex marriage that was passed by voters in 2008 before being struck down as unconstitutional a year ago in federal court – have the legal “standing” to appeal the ruling.

Observers said the justices’ questioning of attorneys for both sides was especially difficult, leading some advocates of same-sex marriage to believe the justices were leaning toward granting the Prop. 8 sponsor, ProtectMarriage, the standing it sought.

But the state Supreme Court ruling in the case, which the 9th US Circuit Court of Appeals requested to assist in its own deliberations, may do more than help determine the fate of Prop. 8. It could help clarify whether or not sponsors of other ballot initiatives are entitled to defend their measures in state court when state officials refuse to do so.

This case came up because then-Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown both declined to appeal when US District Chief Judge Vaughn R. Walker found the law unconstitutional in August 2010.

“The issue of who has legal standing to argue a case is about as arcane, technical and procedural as it gets and something that is very difficult for the general public to understand,” says Laurie Levenson, professor of law at Loyola Law School. However, she and others point out, it could effect whether or not the Prop. 8 case goes to the US Supreme Court, and what happens to other citizens initiatives that are challenged in court.

Several legal analysts say the issue needs clarification because it comes up all the time.

Courtney Joslin, acting professor of law at UC Davis, says the US Supreme Court has never directly decided whether the official proponents of an initiative necessarily have standing to defend a measure if no public official is willing to do so.

Chris Dusseault, a law partner at the firm of Gibson, Dunn and Crutcher who attended the hearing, says he was impressed with how well prepared the California justices were, including Goodwin Liu, who was appointed just last week by Gov. Jerry Brown.

“It was clear that they had read all the briefs very carefully and knew the law. They asked very pointed questions on both sides so both had a great opportunity to make their arguments,” says Dusseault.

The San Diego Gay and Lesbian News (SDGLN) reported that Charles J. Cooper, the attorney for ProtectMarriage, was challenged on whether he could prove where there was tangible injury to the Prop. 8 proponents. It also reported that one justice dismissed Mr. Cooper’s citing of case law as having nothing to do with the initiative process.

SDGLN said Theodore Olson, another partner at Gibson, Dunn and Crutcher who is the attorney for the American Foundation for Equal Rights, also came under harsh questioning. It said both Mr. Olson, a former US solicitor general, and Cooper fidgeted nervously while being questioned by the justices.

Some supporters of same-sex marriage were not thrilled that the justices gave both sides similarly rough treatment.

“Clearly the justices questioned both Cooper and Olson vigorously, and while it seems unthinkable to me that the court would upend California’s democratic system of government by allowing a private group public standing, certainly they were giving that result consideration,” said Kate Kendell, executive director for the National Center for Lesbian Rights (NCLR).

“The justices were clearly disturbed by the idea that the governor and/or attorney general can exercise a pocket veto over a constitutional amendment enacted by the people,” says Tom Watson, co-founder of Love, Honor, Cherish, one of 40 groups that supports repealing Prop. 8.

But legal analysts warn of trying to predict anything tangible from oral arguments.

“Oral argument can be very misleading if you are expecting the justices to tip their hands as to what they are thinking by the questions they ask,” says Vik Amar, professor of law at University of California, Davis.