Tani Cantil-Sakauye

Proponents of Proposition 8 argued Tuesday that Yes on 8 must be granted standing to defend the California same-sex marriage ban in federal court to protect the power of the people to amend their constitution; opponents argued Yes on 8 must be denied standing in order to protect the power of the people to elected state officers, in accordance with the state constitution.

The seven-member California Supreme Court seemed troubled, in much the same way a federal appeals panel was troubled last January, to decide which power should prevail. And some LGBT activists were troubled by that.

The three-judge panel of the 9th Circuit U.S. Court of Appeals sent the difficult question about legal standing to the California Supreme Court. Until they receive the state court’s opinion on the matter, the federal appeals panel has postponed ruling on the legal authority of Yes on 8 to appeal a federal district court decision that struck down Proposition 8. And unless both courts agree that Yes on 8 does have standing, the federal appeals panel cannot rule on whether that federal district court ruling will stand.

The complicated question, in simple form, is this: If state legal officers, elected by the people, decide not to appeal a federal district court decision, can some other entity represent the people in defending a law approved by a majority of voters?

Ted Olson, the famed attorney representing the interests of same-sex couples in the case, Perry v. Brown (formerly Perry v. Schwarzenegger), argued no, “there is nothing” in the California constitution or laws that permit Yes on 8 to appeal when the government decides not to.

Justice Joyce Kennard told Olson she thinks that agreeing with his position would require the court to “nullify” the people’s power to pass initiatives, leaving the people “unrepresented.”

But Olson said that to grant Yes on 8 standing to appeal a decision that the state elected officers decided not to appeal amounts to the court amending the state constitution.

“Is your position that when the governor and the state attorney general don’t defend an initiative, then no one can defend it?” asked Justice Ming Chin.

Olson said yes; the constitution does not give anyone else authority to defend state law, including initiatives, in federal court.

“The proponents,” said Olson, “have taken no oath to represent the people.”

“Haven’t [Yes on 8 proponents] put in a substantial amount more time and effort?” asked Justice Goodwin Liu, who was just recently sworn into the court. “They are the ones most clearly invested” in the initiative.

But Olson said that “spending a lot of money” on an initiative should not grant proponents of an initiative the legal right to defend it.

But, like Kennard, many members of the California Supreme Court seemed worried about cutting into the right of the majority to defend an initiative. The 9th Circuit panel, in hearing arguments on the issue last December, suggested it amounted to giving the governor and/or attorney general a “veto” power over initiatives –a veto power that is not provided by the state constitution.

The 9th Circuit panel specifically asked the California high court to determine whether Yes on 8 proponents “possess either a particularized interest [specific to Yes on 8] in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity…when the public officials charged with that duty refuse to do so.”

Charles Cooper, attorney for Yes on 8, said the proponents have a “direct interest” in the case—in other words “both.” The “particularized” interest, he said, was to put initiatives on the ballot.

“There has never been a single case [in California],” said Cooper, “…in which the official proponents [of an initiative] have not been allowed to intervene or there’s been any objection to their being named as real parties in interest.”

Asked to identify some “injury” that would result if Yes on 8 was not allowed to appeal the decision striking down Proposition 8, Cooper said the injury would occur if the lower court had erred in declaring the initiative unconstitutional and no party was allowed to defend the initiative.

Chief Justice Tani Gorre Cantil-Sakauye suggested that the court would have to let Yes on 8 intervene if the coalition had taken the same position as the state. But the question here, she said, is whether the court must let Yes on 8 appeal when it takes a position different from the people’s elected state officials.

Then California Governor Arnold Schwarzenegger and Attorney General Jerry Brown declined to appeal an August 2010 decision from U.S. District Court Chief Judge Vaughn Walker. Walker ruled that Proposition 8 violated the U.S. Constitution’s guarantee of equal protection.

Cooper said the court should recognize Yes on 8’s legal standing to defend the initiative because to do so would “protect and defend their fundamental right” to propose and approve initiatives. He also argued that the state attorney general doesn’t have authority to refuse to represent state’s interest in validity of initiative.

Shannon Minter, legal director for the National Center for Lesbian Rights, said he was disappointed that “too many of the court’s questions” failed to address specific legal questions “but rather seemed to glorify the initiative process in the abstract and to abdicate a searching examination of the California Constitution in favor of emotional appeals to ‘the people’.”

“The initiative process is already frequently misused to target vulnerable groups, due in part to the Court’s past reluctance to enforce any meaningful limits on the process, even when those limits are mandated by the California Constitution,” said Minter. “I sincerely hope the Court does not compound that mistake by now giving initiative proponents an unprecedented new power to step outside of their proper legislative role and usurp the power that our Constitution gives only to elected state officials in the executive branch.”

Jenny Pizer, legal scholar at the Williams Institute, said she believes the court seems inclined to “give a couple members of the Ninth Circuit panel sufficient substance to find that the proponents have standing, and that the panel can reach the merits.”

Jon Davidson, legal director for Lambda Legal Defense, said his group hopes 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.”

The same-sex marriage controversy has been before the state supreme court four times now, most notably in May 2008. That’s when a 4 to 3 majority ruled that the state constitution prohibited the state from establishing a “statutory scheme” in which both opposite sex and same-sex couples are legally recognized relationships, but only opposite sex couples are designated as married. Three of the seven justices at the time—Justices Marvin Baxter, Ming Chin, and Carol Corrigan—dissented. Baxter’s dissent, which Chin joined, said such a “profound change” needed to be made by either the people or their elected representatives, not the courts.