Supporters of California’s Proposition 8 may not even have standing to appeal a Federal Court ruling that the measure is unconstitutional:
Hardly anyone noticed when the U.S. Supreme Court said in 1997 that it had “grave doubts” that the sponsors of a ballot measure – in that case, an English-only initiative for government agencies in Arizona – had the right to defend the law in federal court.
Now that case could determine the future of same-sex marriage in California.
The Ninth U.S. Circuit Court of Appeals in San Francisco, which will hear arguments in December on a federal judge’s ruling that overturned Proposition 8, has asked both sides to address the question of whether the campaign committee for the November 2008 initiative has legal standing – the right to represent the state’s interests in upholding one of its laws.
The issue arises because Gov. Arnold Schwarzenegger and Attorney General Jerry Brown have refused to defend Prop. 8 in court. That was also the case in Arizona, where state officials refused to appeal a lower-court decision overturning a ballot initiative, and the measure’s sponsors then sought to defend it themselves.
Writing for a unanimous court 13 years ago, Justice Ruth Bader Ginsburg said state officials are normally the only ones who can defend their laws. There’s an exception, she said, when a state passes a law allowing its legislators to represent its interests. But Arizona has no such law, she said, and the sponsors of the English-only initiative “are not elected representatives.”
The court, however, resolved the case on other grounds and did not decide whether backers of an initiative can ever defend it in court.
Although the Arizona ruling remains an obstacle for Prop. 8’s sponsors, whether it dooms the measure is an open question, said Jane Schacter, a Stanford law professor.
The sponsors’ strongest argument, she said, is that elected officials shouldn’t be allowed to “undermine initiatives they don’t support by choosing not to defend them. That would raise questions about direct democracy.”
On the other hand, Schacter said, “elected officials, accountable to the voters, make litigation decisions for the state,” determining which laws to defend and which rulings to appeal.
The Prop. 8 case reverses the usual alignment in controversies over legal standing. The issue typically arises in disputes over the right to sue to challenge a law, with liberals arguing for broad authority and conservatives favoring restrictions.
More at Law.com, SCOTUSblog and The Volokh Conspiracy. If this case proceeds no further, it would effectively make same-sex marriage legal in California – and nowhere else. A victory for gay rights, or a missed opportunity?