Calif.'s Supreme Court Mulls Prop. 8 Dispute

The California Supreme Court Tuesday once again took up the state's voter-approved ban on same-sex marriage. In response to a federal appeals court request, the justices will decide whether the sponsors of Proposition 8 have the legal standing to appeal a federal trial judge's ruling that overturns that initiative.

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MICHELE NORRIS, host: The debate over same-sex marriage was back before the California Supreme Court today, but the words same-sex marriage were rarely mentioned. The issue before the court was a bit of legal hairsplitting: Do the sponsors of Proposition 8, the voter-approved initiative to ban same-sex marriage, have the right to file an appeal after the measure was invalidated?

As NPR's Richard Gonzales reports from San Francisco, the answer to that question could determine whether Prop. 8 gets a full hearing in the courts.

RICHARD GONZALES: After a federal judge ruled that Prop. 8 is unconstitutional about a year ago, the proponents, people who oppose same-sex marriage, appealed in federal court. But the U.S. Ninth Circuit Court of Appeals said it first needed guidance as to whether the proponents have legal standing under California law to file an appeal, so it asked the California Supreme Court for its opinion.

In today's hearing, attorney Charles Cooper argued on behalf of a group called Protect Marriage. He said proponents have to be able to defend their initiative in the case when the attorney general and governor have chosen to not appeal the lower federal court ruling invalidating Prop. 8.

CHARLES COOPER: The official proponents are the ones who are standing essentially as agents of the people to represent the state's interest - its clear and undisputed interest - in the validity of initiative measures.

GONZALES: Traditionally, the California courts have looked favorably upon the sponsors of voter initiatives and allowed them to intervene in cases when those measures are legally challenged. But that has always been as a matter of discretion and never been enunciated as a right. And nearly all the justices indicated that they want to be careful about making a broad ruling that will impact all kinds of voter initiatives, not just the ban on same-sex marriage. Attorney Charles Cooper.

COOPER: Your Honor, my theory is limited to the occasion when the state refuses to defend the initiative at issue.

GONZALES: Cooper said that what's really at stake is the integrity of the voter initiative process itself. If state officials do not defend in court a voter-approved initiative because they do not agree with it, Copper argued, then those officials are effectively vetoing the will of the people. But Cooper's opponent, Theodore Olson, the conservative attorney who supports same-sex marriage, cast the debate differently.

THEODORE OLSON: There is nothing in the California Constitution or its statutes that give private citizens the right to take over the attorney general's constitutional responsibility to represent the state in litigation in which the state or its officers are a party.

GONZALES: Olson said that sponsors of an initiative have the right to propose and enact a voter-approved measure, but they have no right to defend it in court unless they suffer actual harm. And Olson has earlier pointed out that when during the federal trial the lawyer for Prop. 8 was asked what damage would be done to heterosexual marriage if the measure were nullified, he said, I don't know.

Several of the state High Court justices appeared troubled by Olson's argument. Here's a skeptical Justice Joyce Kennard questioning Olson.

JOYCE KENNARD: It would appear to me that to agree with you would nullify the great power pertaining to proposing and adopting state constitutional amendments.

OLSON: The power to propose and enact, which are the words of the California Constitution, have not been nullified. They have not been vetoed. The attorney general and the governor are enforcing Proposition 8. Otherwise, my clients would be married today.

GONZALES: Even though Prop. 8 was struck down as unconstitutional, it remains in effect while it moves through the appeals process. The California Supreme Court has 90 days to issue its ruling. That decision on whether the Prop. 8 sponsors have legal standing then goes to the U.S. Ninth Circuit Court of Appeals, which will come to its own conclusion based on federal precedent. And all that has to happen before the Ninth Circuit gets to the merits of the case: whether California's ban on same-sex marriage is constitutional. Richard Gonzales, NPR News, San Francisco.

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