Prop. 8: Battling in new arena
on Jan 24, 2011 at 11:27 pm
Moving from the federal courts to California’s highest state court, the legal combatants battling over the state’s ban on same-sex marriage took steps Monday to try to shape how — or whether — the state Supreme Court gets involved.  In four letters filed Monday with the state tribunal in San Francisco, both sides on the issue of Proposition 8’s validity took conflicting positions, and others interested but not directly involved filed their views, too.
The letters were in response to the request by the Ninth Circuit Court for some legal advice on state law from the California Supreme Court — advice that supposedly would help the Circuit Court decide whether to keep the case going, or scuttle it because there was no one with the legal right to defend the constitutionality of Prop. 8. The Circuit Court has before it an appeal challenging a federal judge’s ruling in August striking down the ballot measure.
In brief, here is what the four letters proposed:
Opponents of Prop. 8 (supporters of same-sex marriage) — The state Supreme Court should decline to take up the request from the Circuit Court. The issue of who may defend Prop. 8, they said,  is a matter of federal law, and no one but the state, under state law, has a right to decide whether to defend the measure. The state has refused to do so. (Their letter is here.)
Backers of Prop. 8 (opponents of same-sex marriage) — The state court should answer the Ninth Circuit’s questions about state law, because they will determine whether anyone can defend the measure. State law, they said, goes a long way to allow someone other than state officials to defend a ballot measure in court. (Their letter is here.)
The city-county of San Francisco (supporting same-sex marriage) — If the state court agrees to answer the questions of the federal court, it should reframe the questions before answering them, to make them better fit the case and state law. The Circuit Court assumed state officials had a duty to defend such a measure, but that is not so, city-county officials said.  (The local government’s letter is here.)
Outside groups that often promote ballot measures in the state — The state often fails to defend such measures in court, or does so inadequately, so the sponsors of such voter-initiated laws should have their day in court to do so. Preserving direct democracy is at stake, they said.  (Those groups’ letter is here.)
On Jan. 4, after holding a hearing in December on the pending appeal, a three-judge panel of the Ninth Circuit sent a question to the state Supreme Court, asking whether the backers of a ballot measure have any right, under state law, to defend the measure’s validity when state officials have refused to do so.
Although the Circuit Court framed the issue it was raising as a single question, it actually has two parts:Â whether those who sponsor a ballot measure have a sufficient personal interest in the measure’s validity to allow them to defend it in court, and whether they can stand in for the state if officials refuse to make a defense.
There is no controlling state precedent so far that provided answers, the Circuit Court said. They added that the answers could be “dispositive of our very ability to hear this case.”
What is involved here, technically, is whether anyone other than state officials has “standing” to pursue an appeal of the federal District Court ruling nullifying Prop. 8 under the U.S. Constitution. The letters filed Monday, perhaps predictably, made differnt and conflicting arguments.
As of now, the state Supreme Court has not indicated whether it will provide an answer. It has the authority to respond, but apparently that is a matter largely if not entirely within its sole discretion. (The letters filed Monday came in together because Monday was the deadline, under state court rules, for reacting to the request for a state court response.)
The only letter flatly opposing a state court response was that of the opponents of Prop. 8. But, if the state court opted to respond, the letter said, it should “expedite its treatment of this matter by setting an accelerated briefing and argument schedule.”
The judge’s ruling against Prop. 8 is on hold while the Circuit Court considers the appeal filed by the backers of the measure. Another backer — Imperial County — was denied a right by the Circuit Court to join in the case to defend the measure. That leaves only the Prop. 8 proponents.
If no one has standing to pursue the appeal, then the Circuit Court would have no jurisdiction to act. What would happen then to the judge’s ruling against Prop. 8 is in dispute between the two sides.
