Via the Advocate: The California Supreme Court heard arguments today that could have far reaching implications not only for same-sex marriage in California, but also for future ballot initiatives like Proposition 8, which banned gay people in 2008 from wedding.
The question at today’s hearing is about whether a group unaffiliated with the state government has the right to defend a state law in court — in this case, Proposition 8.
Former governor Arnold Schwarzenegger, current governor Jerry Brown, and Attorney General Kamala Harris have all refused to defend the ballot initiative from challenges to its constitutionality. So the proponents of Proposition 8, which spent heavily and organized to pass the law, have been fighting to fill the void left by the state.
Lawyer Charles Cooper, representing the antigay ProtectMarriage.com, argued that other courts have allowed proponents of ballot initiatives to defend their laws because they have a specific interest.
Cooper was pressed by a justice who asked him whether those against marriage equality would be able to show any actual injury if same-sex couples were allowed to legally wed.
Ted Olson, representing the gay and lesbian couples suing the state for marriage equality, received push-back from one justice who challenged his assertion that the state attorney general has authority to pick and choose which laws are worth keeping. After some prodding, Olson clarified that an attorney general must enforce the laws but does not have to defend them.
After the trial, Olson told reporters that the justices were tough, but he said he felt encouraged by the line of questioning, according to the Courage Campaign.
“There is ample authority that individuals do not have a right to defend a law unless they would suffer a direct and immediate harm from its invalidation,” Olson said in a statement through Americans For Equal Rights. “The proponents of Proposition 8 will not suffer any harm from a decision that grants gay and lesbian Californians their fundamental civil right to marry. It is the Attorney General who has the exclusive authority to make litigation decisions on behalf of the State, and here the Attorney General has made the sound decision that the discriminatory provisions of Proposition 8 do not warrant defense on appeal. Proponents cannot second-guess that exercise of discretion.”