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BREAKING NEWS: California Supreme Court tough on both sides in Proposition 8 hearing

SAN FRANCISCO – A well-prepared California Supreme Court today vigorously grilled both sides in the hearing on whether the Proposition 8 proponents have legal standing in the appeals process if the governor and attorney general decline to participate.

After federal district Judge Vaughn Walker ruled last year that Proposition 8 was unconstitutional, the Governor and the Attorney General of California said that they would abide by the ruling and not appeal the decision. ProtectMarriage, a group that supported Prop 8 and took away marriage equality from gay and lesbian Californians, then appealed the ruling to the Ninth Circuit Court of Appeals in San Francisco.

After a hearing earlier this year, the appeals court asked the California Supreme Court to review the standing issue:

“Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.”

Today’s hearing was broadcast on The California Channel and via the Internet, where the live airing was constantly broken up, most likely due to the intense interest in the case. Various law groups and gay rights advocates tweeted about the proceedings for their followers.

The hour-long hearing was bruising to both sides as the justices constantly interrupted attorneys to keep them on target.

Charles J. Cooper, the attorney for ProtectMarriage, was challenged by one justice on whether he could prove where there was actual injury to the Prop 8 proponents. Yet another justice dismissed Cooper’s citing of Karcher case law to support his contention that ProtectMarriage has a right to standing, noting rather dryly that he was on “on point” and that the Karcher case had nothing to do with the initiative process.

Cooper showed his nervousness by tap, tap, tapping the little finger on his right hand as the justices challenged his assertions in court.

Ted Olson, one of the big-name attorneys for the American Foundation for Equal Rights (AFER), didn’t fare any easier from the justices. He pointed out that the California Constitution and statutes don’t give private citizens the right to represent the state in litigation, and almost immediately came under intense questioning by the justices. One of the justices questioned whether the Governor and Attorney General could pick which laws they would enforce, while another noted that California has liberally allowed standards of standing.

Olson did manage to get in his key points, such as noting that his gay and lesbian clients would be married today if the state was not enforcing the law. He also contended that the state constitution doesn’t given the public the right to defend laws, thus a private group would not be able to have legal standing. Olson said it would be chaos if citizens could make the courts second-guess the attorney general’s enforcement of laws.

It was also clear Olson was squirming a bit, too. At one point, he clinched his hands behind his back, out of sight of the justices, and twirled his thumbs for a few moments.

“There is ample authority that individuals do not have a right to defend a law unless they would suffer a direct and immediate harm from its invalidation,” Olson said at a news conference after the hearing.

“The proponents of Proposition 8 will not suffer any harm from a decision that grants gay and lesbian Californians their fundamental civil right to marry. It is the Attorney General who has the exclusive authority to make litigation decisions on behalf of the State, and here the Attorney General has made the sound decision that the discriminatory provisions of Proposition 8 do not warrant defense on appeal. Proponents cannot second-guess that exercise of discretion,” Olson said.

The justices gave no indication of how quickly they will issue their opinion on the issue of standing, although it is expected within 90 days.
That opinion will be forwarded to the Ninth Circuit Court of Appeals, which will resume deliberations in the appeals case.

If California’s high court decides that ProtectMarriage has no legal standing, the appeals court most likely would dismiss the appeal and Judge Walker’s ruling would stand. Gay and lesbian couples would then be able to marry again in California.

If the high court decides that ProtectMarriage has legal standing, the appeals court could go either direction in its decision. Regardless of the outcome, all legal scholars believe that the appeals court decision will be then appealed to the U.S. Supreme Court by the losing party.

Reaction to the hearing

Statement by National Center for Lesbian Rights (NCLR) Executive Director Kate Kendell:

“It would be an unthinkable blow to California’s democratic system of government if the handful of individuals who sponsored Prop 8 could make decisions for the entire state. Today’s arguments raised critical questions affecting the future of all groups who may be targeted by unconstitutional ballot initiatives, and the California Supreme Court’s decision will determine whether our state can be held hostage by special interests with no accountability to the public. We are hopeful that the Court will affirm that a handful of private citizens representing only their own narrow interests cannot usurp the role of the duly elected officials of the state of California.”

Statement by Jon Davidson, legal director of Lambda Legal:

"It is often impossible to predict from the questions asked by appellate judges how they will rule and today was no different. All of the judges on the California Supreme Court asked probing questions and seemed concerned about the implications of any decision they might make. We continue to hope that the Court will ultimately decide that small groups of unelected individuals who are answerable to no one should not be able to act on behalf of the state.

"We also hope they will see that the proponents of Proposition 8 had no direct interest in the validity of the measure. Their only legal interest was getting it placed on the ballot. A philosophical interest based on prejudice against lesbian and gay people should not be enough to gain access to federal courts."

Statement by Roland Palencia, executive director of Equality California:

“Extremists that backed Proposition 8 want the court to grant them special authority to trump the decision of the Governor and the Attorney General. This request is not only ridiculous, it's outrageous. Anti-equality individuals and organizations are not official representatives of the State and, despite their claims, they will not experience harm if same-sex couples once again have the freedom to marry.

“In fact, it is gay and lesbian couples and their families who are harmed every day that they are denied access to the fundamental right to marry. Judge Walker recognizes this. The Governor and Attorney General recognize this and California citizens increasingly recognize it as well.

“First opponents of equality used lies and and cruel stereotypes about LGBT people being a threat to children and families to to scare voters into supporting Prop 8. They carried the same messages into the courts and now with their attempts to overturn the FAIR Education Act, which will teach factual history about the contributions of people with disabilities, LGBT people and Pacific Islanders adding to the list of often overlooked groups such as women, African Americans, and Latinos.

“We appeal to fair-minded Californians to reject this extremist anti-equality agenda once and for all. And we appeal to the California Supreme Court to apply the law fairly and accurately and reject our opponents' request for standing to appeal Judge Walker's decision.”