The battle over the legality of Prop. 8, the state voter initiative that outlawed same-sex marriage, continued on its epic way today as the California Supreme Court ruled that yes, bigots could defend the law.
You see, after religious conservatives threw all the money they could at the initiative and got it passed, it was challenged as unconstitutional. And then the state, namely then-Attorney General Jerry Brown, who would be in the position of defending the laws of this particular land, said he wouldn't defend it.
What then? The religious nuts said they would defend it on their own. But ...
... did they have legal "standing" to do so. After all, it's not their law now. It belongs to the state of California.
The court today said yes, they can take up the defense of the public's rule even if the state wouldn't defend it (PDF of the ruling). A statement from the court says:
The court observed that the procedural question of an official initiative proponent's standing to defend the initiative's validity when public officials decline to do so does not depend "on the substance of the particular initiative measure at issue, but rather on the purpose and integrity of the initiative process itself."
In other words, the judges held their noses over the content of the case. The ruling says:
... The voters who have successfully adopted an initiative measure may reasonably harbor a legitimate concern that the public officials who ordinarily defend a challenged state law in court may not, in the case of an initiative measure, always undertake such a defense with vigor or with the objectives and interests of those voters paramount in mind. As a consequence, California courts have routinely permitted the official proponents of an initiative to intervene or appear as real parties in interest to defend a challenged voter-approved initiative measure 'to guard the people's right to exercise initiative power.'
The Los Angeles Times notes that the move today " ... sets the stage for action in federal courts -- which could go all the way to the U.S. Supreme Court ..."
Fun for the whole family. Except, of course, if your family includes two mommies or two daddies.
Lambda Legal legal director Jon Davidson said that while the Golden State's highest court said these fanatics can defend the law here, it remains to be seen whether than can do so as the case goes inevitably federal:
Today's ruling also does not settle the question as to whether Prop 8 proponents have standing in federal court. It remains up to the U.S. Court of Appeals for the Ninth Circuit to decide whether or not the U.S. Constitution allows initiative proponents to defend a challenge to the measure the proponents supported when elected state officials don't. We think the U.S. Supreme Court has made clear that they don't.
... While a disappointing ruling, this case is now back in federal court, where we expect a quick victory.
[Update]: California Attorney General Kamala Harris is rooting for same-sex-marriage-rights advocates. Her statement:
While the Department of Justice argued the Proposition 8 proponents do not have standing to pursue this appeal, the court has ruled otherwise. This ruling now shifts the litigation to the federal court of appeals. I firmly believe that Proposition 8 violates the equal protection and due process clauses of the U.S. Constitution and am confident that justice will prevail.