September 6, 2011

California Supreme Court hears argument on Prop 8 standing issue

This morning the Court heard argument regarding whether the proponents of Proposition 8, the ballot measure that amended the California Constitution to prohibit same-sex marriage, have standing under California law to defend the measure against a federal constitutional challenge in the Ninth Circuit. The argument comes less than seven months after the Court agreed to answer the Ninth Circuit’s certified question under California Rules of Court, rule 8.548, regarding the proponents’ standing. You can view a replay of the argument here on the California Channel.

While it is often difficult to discern how the Court will rule based on the questions the justices pose at argument, my own take on the argument is that the Court is leaning in favor of telling the Ninth Circuit that the Prop 8 proponents do have standing to defend the initiative. In the alternative, the Court might inform the Ninth Circuit that California law generally confers discretion on trial judges to allow intervention by ballot initiative proponents, and allow the Ninth Circuit to determine whether that rule is sufficient to confer standing under Article III of the U.S. Constitution.

The argument was the first for the Court’s newest member, Justice Goodwin Liu, who was sworn in just last week. Justice Liu hit the ground running, posing several thoughtful and articulate questions during the argument. He asked Theodore Olson, counsel for those challenging the constitutionality of Prop 8, whether the people must have standing to defend a ballot initiative despite the decision of state officers not to defend it because of the directly democratic nature of the initiative process. He also posed questions to counsel for both sides regarding the “particularized interest” possessed by the proponents of Prop 8, that is, whether the proponents have a greater or more definite interest in defending the initiative than do the people of California as a whole.

At the conclusion of oral argument, the matter was submitted. The Court now has 90 days to issue its decision. (Sup.Ct. Int.Op.Prac. & Pro. §§ VII & X; see Cal. Const., Art. 6, § 19.)

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