Update Thursday, Nov 17: The court has ruled unanimously to grant Prop 8 proponents standing. Click here for the story.
From the court:
As The California Report's Scott Shafer reported after attending the hearing, even justices who one might think would be sympathetic to the case against Proposition 8 appeared highly skeptical of the legal argument that Prop 8 proponents do not have "standing" (the legal right to be a party in a lawsuit) to defend the measure when the attorney general and governor decline to do so, as is the case here.
San Francisco – The California Supreme Court today announced that it will file a written opinion at 10 a.m. on Thursday, November 17, 2011, in Perry v. Brown, S189476, a case that involves whether the official proponents of an initiative measure have standing to defend the constitutionality of the measure when the public officials charged with that duty decline to do so.
At the time of filing, the opinion will be available on the California Courts website at this link
The Supreme Court heard oral arguments in Perry v. Brown on September 6, 2011, in San Francisco.
"They seemed to say that the voters have authority in the voter initiative process," Shafer said. "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."
California's high court is only ruling on this somewhat arcane legal issue because the federal 9th Circuit asked it to settle the question about standing before it moved on to the issue of Prop 8's constitutionality. A lower court ruling by former Judge Vaughn Walker found that the voter-approved ban on same-sex marriage was unconstitutional under the Equal Protection Clause of the 14th Amendment.
UC Davis Law Professor Vikram Amar told Shafer the question is complicated, not easily falling onto either side of any liberal/conservative divide.
"On the one hand you could say conservatives should not want cases to be brought in court very easily because they don’t want the courts meddling with what the Legislature does,” says Amar. “So conservatives should generally like a standing doctrine that limits access to federal courts to reduce litigation and reduce lawsuits.
On the other hand, says Amar, “a conservative may want standing doctrine to be a little more generous to Prop. 8 backers to make sure initiatives like Prop. 8 aren’t killed by liberal elected politicians, like attorneys general and governors. So standing and issues like it sometimes invert political instincts because these doctrines are easy enough to manipulate so that you can often use them to reach a particular result in a particular dispute without binding yourself in other bind cases down the road … where your result inclinations may be different.”
The opinion the California court will issue tomorrow is advisory and not binding on the federal court. But Amar said if the state court advises the 9th Circuit that California law does not confer legal standing on initiative proponents, it’s almost certain the appeal of Vaughn Walker's ruling will die.
But that does not appear to be likely. We'll find out tomorrow...