Scott Shafer: Prop 8 Case Could Turn on California Supreme Court's Decision on "Standing"

The California Supreme Court voted 7-0 Wednesday to answer a question put to them by the federal court considering the constitutionality of Prop. 8: "Does state law give the official proponents of an initiative the legal authority to defend the measure's constitutionality when public officials charged with that duty refuse to do so?"

Their answer -- which could come as early as this fall -- will be pivotal in the ultimate outcome of the Prop. 8 legal tussle. The question of "legal standing" was first raised by the three-judge panel of the Ninth Circuit Court of Appeals in San Francisco during oral arguments last year. The judges seemed genuinely puzzled by the question, so they turned to the California Supreme Court for help answering it.

In agreeing to take up the question Wednesday, the court put the question on a legal fast track. The opening brief on the merits is due March 14th. Oral arguments in the matter could come as early as September -- lightning fast by Supreme Court standards.

Their answer is consequential either way. If the court decides ballot measure proponents LACK legal standing, the Appeals Court will then have little choice but to dismiss the appeal before them. It would mean the lower court ruling declaring Prop. 8 unconstitutional stands, opening the door once again to same sex marriages in California. It would also reduce the likelihood that this case will reach the U.S. Supreme Court, where it would meet a very uncertain fate.

On the other hand if the justices say proponents DO have legal standing, the Appeals Court judges would then be free to consider questions about Prop. 8 on the legal merits. They could issue a sweeping decision requiring all states in the Ninth Circuit to allow same sex marriage. Or they could issue a much narrower decision that would apply only to California.

In oral arguments last year two of the federal judges focused on the fact that Prop. 8 eliminated a right that existed before the election -- suggesting that might be more "legally egregious" than simply reinforcing the status quo by preventing it in a state where it wasn't already legal. A ruling along those lines would be considered "narrow" and perhaps more likely to withstand scrutiny by the U.S. Supreme Court, where it will probably go next.

Meanwhile in Sacramento Wednesday, state Sen. Tom Harman (R-Orange County) introduced legislation that would require California's attorney general to defend in court all voter-approved ballot measures -- something Jerry Brown refused to do when he was A.G.

Speaking of Jerry Brown, the governor should announce a nomination for the State Supreme Court any day now. Justice Carlos Moreno announced he's retiring at the end of February. His replacement will hear the Prop. 8 case and take part in the decision.