Prop. 8 Ruling Delayed By Standing Questions

The Ninth Circuit Court of Appeals is asking for help from the state’s Supreme Court in the constitutional challenge to Proposition 8. At issue, according to the Bay Area Reporter, is whether the organization that sponsored Prop. 8 has standing to defend it in court, a question of critical importance since state officials refused to defend the law on appeal from the district court’s ruling that it is unconstitutional.

The issue of whether Protectmarriage.com, the backers of Prop. 8, have standing in the federal lawsuit has been a key issue in the case since both former Governor Arnold Schwarzenegger and Governor Jerry Brown, serving as the state’s attorney general, refused to defend Prop. 8 before the 9th U.S. Circuit Court of Appeals when the three-judge panel heard oral arguments last month.

The court did rule that a deputy court clerk from Imperial County, California, did not have standing to intervene in the case to defend Proposition 8, affirming the lower court’s ruling on that issue.

About the Ninth Circuit’s request to the California Supreme Court, Andrew Pugno, general counsel of the ProtectMarriage.com coalition said: “This gives the state Supreme Court an opportunity to clearly reaffirm the right of official proponents to legally defend voter-passed initiatives they successfully enact, particularly when public officials abdicate their constitutional duties by refusing to enforce and defend the law.”

But Jennifer C. Pizer, National Marriage Project Director for Lambda Legal, contends that state law does not empower activists to bring a lawsuit in support of ballot measures they agitated for. “We do not believe California law does or should allow initiative proponents special power to drive litigation about measures they have supported. Prop. 8’s proponents are not personally affected by that initiative as none of them wants to marry a same-sex partner,” stated Pizer. “And state law up to this point has never authorized political activists to usurp the role of the state’s chief executive and top lawyer if the activists disagree with those duly elected officials’ decision not to prolong litigation of a particular court case.”

According to Jim Campbell, litigation counsel with the Christian right Alliance Defense Fund:

Politicians should not be able to nullify a democratic act of the people by refusing their duty to defend it. The people of California have the right to be defended, and thus the official proponents of Proposition 8 must have standing to defend that law. Otherwise, the governor and attorney general will succeed in indirectly invalidating a measure that they had no power to strike down directly.

Robert Cruikshank at Calitics explains that the courts have been put in this position by California’s voter-driven ballot initiatives. Such initiatives make the people a “kind of fourth branch of government.” When the state won’t defend a ballot initiative, that means a vote of the people gets nullified—so it would seem that the courts would have to grant someone standing so the will of the people can become law.

Cruikshank says the Ninth Circuit isn’t ready to make that ruling without guidance, though:

But because such a ruling would have a significant impact on future legal battles over California ballot initiatives, the 9th Circuit is deferring to the CA Supremes. The CA Supremes could say “yes, the proponents do have standing” or “no, they proponents do not have standing,” or they could simply not respond at all. The first and third options are more likely, and based on the CA Supremes’ longstanding (and I believe flawed) unwillingness to interfere with ballot initiatives, the CA Supremes will probably conclude that the Prop. 8 proponents do indeed have standing to appeal.

In which case, the 9th Circuit would then rule on the issue of Prop. 8’s constitutionality. I am guessing that their ruling will be to uphold Judge Walker, otherwise they would just say Prop. 8 is constitutional and moot the question of standing.

Then, of course it all gets to go to the US Supreme Court before everything is said and done, so we’re really no closer to a decision on marriage equality in California.

What it points up, however, is how truly ridiculous it is to have this “fourth branch of government” in the form of voter-driven ballot initiatives. We elect legislatures and impanel judges in order to make laws and protect the minority from the tyranny of the majority. Voter-driven ballot initiatives all but ensure that the majority can exert its tyranny over the minority with a simple vote—and in the case of marriage equality, religion can play a pivotal role in whipping up the majority against the minority.

While figuring out who has standing may be the sticky wicket of the moment, the deeper question is why does any state allow its voters to take away the rights of a minority simply because a majority will vote for it? It’s too easy to whip up the emotions of the populace against a vilified minority; especially when religion is used to fuel the flames. If the twists and turns of this case reveal anything, it’s how unjust and oppressive the ballot initiative process truly is.

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