The latest round in the legal battle over same sex marriage will be fought Tuesday in a hearing before the California State Supreme Court.
The arguments will focus not so much on same-sex marriage itself, but on Proposition 8, the voter-approved initiative banning such marriages. A federal judge has ruled Prop. 8 unconstitutional and the issue before the court on Tuesday is whether proponents of the initiative have the legal authority, or standing, to pursue an appeal.
After Federal Judge Vaughn Walker struck down Prop. 8 last year, proponents wasted no time in taking their case to the U.S. Ninth Circuit Court of Appeals.
But a three-judge panel said that even before it could consider any constitutional issues, it first needed to be sure that Prop. 8 proponents have legal standing. So, they punted the issue over to the California State Supreme Court asking for guidance on this question: Do the sponsors of a voter initiative have the right under California law to defend it in court?
Andrew Pugno, general counsel for ProtectMarriage.com and a proponent of the same-sex marriage ban, says yes.
"They are the very best suited individuals to stand in for the people who by majority vote exercised their right to pass a Constitutional amendment by initiative and somebody has to be authorized defend it, and who better than the official proponents?" Pugno says.
This question of legal standing arises because former Gov. Arnold Schwarzenegger and former Attorney General Jerry Brown — who is now the governor — both declined to defend the voter approved initiative.
"Essentially the governor and attorney general would be exercising a veto over the people's vote if they are able to essentially allow an initiative to be nullified simply by standing back and doing nothing when its challenged," Pugno says.
But a group of non-elected individuals can't represent the State says a ttorney Theodore Olson, who will argue Tuesday before the California Supreme Court.
"Simply because they were proponents, or they raised money or supported or financed advertising for Proposition 8, they don't have the right to substitute themselves for the constitutional official In California that does have that right under the California constitution," Olson says.
Olson will argue that to have legal standing the proponents have to show that they would suffer a direct harm if Prop. 8 is held to be unconstitutional.
"Here, the proponents were asked during the course of the trial, what damage would be done to heterosexual marriage if Proposition 8 was held to be unconstitutional and the lawyer for the Proposition 8 proponents said 'I don't know,'" Olson says. "You have to have a direct stake in the matter that's being litigated."
Legal precedent under state law is murky, says University of California, Davis law professor Vikram Amar. The proponents of Prop. 8 were allowed to intervene when their initiative was challenged in state court. But Amar says up until now there have been no hard and fast rules.
"Putting aside the politically charged nature of Prop. 8, they're going to be deciding something that governs initiatives more generally," Amar says. "And they have latitude, I think, to do that without too many handcuffs on them right now."
The State Supreme Court's decision is likely to influence the Ninth Circuit Court of Appeals, says Marc Spindelman.
"If the California Supreme Court says there is no standing under state law, the Ninth Circuit won't go on, presumably, to reach the merits of the case," says Spindelman, who is a professor at the Moritz College of Law at Ohio State.
The California Supreme Court's decision is expected within 90 days.
If the court rules that Prop. 8 supporters don't have standing, Judge Walker's decision that California's ban on same-sex marriage is unconstitutional would likely survive. That would throw the issue of same-sex marriage back to the Ninth Circuit Court of Appeals. So it's difficult to say if or when same-sex marriages would ever resume in California.