Justices Are Skeptical of Denying Standing to Prop 8 Support; Watch Replay of Today’s Hearing

Update Wednesday: Watch the entire hearing at CalChannel or KGO below.

Update Tuesday, 1:50 p.m. The California Supreme Court heard oral arguments today in the latest legal battle over Proposition 8, California’s same-sex marriage ban.

The issue the court is deciding, at the request of the federal Ninth Circuit Court of Appeals, is whether proponents of an initiative like Proposition 8 have the right to defend it when elected officials of the state decline to do so, as is currently the case.

Supporters of same-sex marriage had been hoping that the state Supreme Court’s ruling on this issue would put an end to the case, with Judge Vaughn Walker’s 2010 invalidation of the same-sex marriage ban standing as the final legal word on the matter.

But if the questions coming from the bench were any indication of how the justices will rule, then it looks like today’s hearing will not be the final Prop 8 legal battle.

From The California Report’s Scott Shafer, who was in the courtroom today:

It was rough sledding today at the court for supporters of same-sex marriage. The seven justices, in almost all of their questions, seemed very reluctant to say that when the attorney general and the governor refuse to defend a ballot measure, then no one can.

They seemed to say that the voters have authority in the voter initiative process and if the governor and the attorney general can simply pick and choose which laws to defend in court then that power voters have is essentially illusory. And they seemed very reluctant to say that voters don’t have any power when the state refuses to go to bat for them.

What became very clear is that this case is likely to go forward at the 9th Circuit and that proponents of Prop 8 will get to defend the law in court. It’s not going to end here.

The court has 90 days to make a decision on the standing issue. When it does, the case will go back to the Ninth Circuit, which will then take the state’s court’s opinion into account when deciding whether the case can go forward.

Keep in mind, even if the California court rules that the Prop 8 proponents do have standing, and the federal court accepts that opinion, the larger issue of whether the law is constitutional or not under the equal protection clause will still have to be decided.

To get a sense of how long same-sex marriage has been on the front-burner in California, take a look at this timeline we put together in January.

Update 11:25 a.m. The hearing is over. Here’s a live blog from the Prop 8 Trial Tracker, which opposes Proposition 8. It provides a good summary of the arguments and legal precedents cited.

We’ll have a report from The California Report’s Scott Shafer a little later today.

Earlier post

Prop 8 plaintiffs. (Photo: Scott Shafer/KQED)

In San Francisco right now, the California Supreme Court is trying to untangle the latest legal issue in the long and winding Proposition 8 lawsuit. The issue that the court is deciding: whether the sponsors of Proposition 8, California’s same-sex marriage ban, have legal standing to defend the law in light of the State of California’s refusal to do so.

From the KQED legal glossary:

A plaintiff will have standing if:

Injury: The plaintiff has suffered, or will quickly suffer, injury to a legally protected right. The injury must be actual, and not abstract.

Causation: There must be a direct connection between the lawsuit at hand and the plaintiff. The party must be directly affected by the suit, and cannot be affected by a third party.

Redressability: It must be likely that if the plaintiff wins, the court decision will directly stop a legal injury.

The concept of standing is meant to prevent parties who are not directly involved in a controversy from assuming a role in a lawsuit. If either the plaintiff or defendant do not have standing then the court can throw the case out as a summary judgment.

The court was asked to rule on the issue by the 9th Circuit Court of Appeals, which is currently in process of hearing a federal lawsuit against Prop 8. The 9th Circuit asked California’s highest judicial body for its opinion on the standing issue, which the federal court wanted before it ruled on the separate issue of whether Prop 8 is constitutional or not under the equal protection clause of the 14th Amendment. A lower court ruling, written by now-retired judge Vaughn Walker, held Prop 8 to be unconstitutional on those grounds.

Today’s detour back into state court may actually be a pivotal moment in the final fate of Prop 8. In August, Scott Shafer talked to UC Davis law professor Vikrim Amar about the issue of standing. Amar said if the court advises the 9th Circuit that California law does not give initiative proponents legal standing, it’s nearly certain the Prop. 8 appeal will die. At that point, he said, the chances the U.S. Supreme Court would take up an appeal would be “infinitesimally small.”

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Jon Brooks

Jon Brooks writes mostly on film for KQED Arts. He is also an online editor and writer for KQED's daily news blog, News Fix. Jon is a playwright whose work has been produced in San Francisco, New York, Italy, and around the U.S.

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