Defending the right to defend marriage

The latest twist came today in the legal and verbal gynmastics over California’s Proposition 8. But for a change, it wasn’t about the merits of the law.
It was about whether the legal team representing Prop 8 supporters had any ‘standing‘ in court to defend this particular voter initiative.

This issue is significant for several reasons. First, the State of CA has the responsibility of defending its laws in court. That’s right: Proposition 8 is a duly enacted law of the State of CA. The people passed this initiative in a highly visible election that was not even a close call, 51% to 49%, approximately the same percentage of the vote that elected Barack Obama President of the United States.

Second, the elected officials charged with this duty, the Attorney General and the Governor, have consistently refused to perform their constitutional duty…

Third, given the above, the proponents of the ballot initiative, that is, the committee of people who legally filed the paperwork to get it on the ballot, have asked to have standing to defend Prop 8 against the absurd and frivolous legal attacks mounted on it. If the Proponents do not have standing to defend Prop 8, then no one does.

Fourth, if no one has standing to defend Prop 8, then this is, for all practical purposes, the end of the initiative process in CA.
And far beyond, says the Alliance Defense Fund, part of the team defending their standing. There’s a lot at stake here.

• The hearing concerns whether the people of California who voted for Proposition 8 will be defended at all.

• A federal court decision overturning Proposition 8 would bring additional years of chaos and confusion in the legal battle to preserve marriage.

• Such a decision could impact marriage laws in up to 44 other states—including the 29 other states where voters overwhelmingly adopted state constitutional amendments—along with eliminating the right of Californians to reaffirm marriage in their state constitution.
So what happened in that hearing? Here’s Jennifer Roback-Morse’s take:

The justices seemed to be concerned about over-reaching on both sides. On one side, they asked, suppose we adopt your theory, Mr. Olsen, and rule that the Prop 8 proponents do not have standing  to defend the measure?  What will be left of the initiative process?

On the other side, they asked Chuck Cooper, suppose we adopt your theory that the Proponents do have standing? Do the Proponents act as agents of the state, in place of the Attorney General?  How far does that ability to represent the state’s interest extend? Cooper made it clear that he thought it was possible and proper, for the Proponents’ right to speak for the state should be limited to the specific ballot issue, and nothing  more.

Ted Olsen, on the other hand, seemed to be completely uninterested in the question of the long-range consequences of his legal theory on the future of the initiative process.
The justices have 90 days to deliberate competing claims. Stay tuned…


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