September 6, 2011
By Adam Bink
Today at 10 AM PST, the California Supreme Court will convene a hearing to decide whether the proponents of a ballot initiative — in this case, Proposition 8 — have standing to defend the initiative in court when the governor of California and the attorney general decline to do so. As Rick wrote in an op-ed this morning, the ruling, which is required to come within 90 days from today, could have broad implications on the political process.
NPR encapsulates the arguments the court will hear this morning in quotes from Andy Pugno and Ted Olson:
Do the sponsors of a voter initiative have the right under California law to defend it in court?
Andrew Pugno, general counsel for ProtectMarriage.com and a proponent of the same-sex marriage ban, says yes.
“They are the very best suited individuals to stand in for the people who by majority vote exercised their right to pass a Constitutional amendment by initiative and somebody has to be authorized defend it, and who better than the official proponents?” Pugno says.
This question of legal standing arises because former Gov. Arnold Schwarzenegger and former Attorney General Jerry Brown — who is now the governor — both declined to defend the voter approved initiative.
“Essentially the governor and attorney general would be exercising a veto over the people’s vote if they are able to essentially allow an initiative to be nullified simply by standing back and doing nothing when its challenged,” Pugno says.
But a group of non-elected individuals can’t represent the State says attorney Theodore Olson, who will argue Tuesday before the California Supreme Court.
“Simply because they were proponents, or they raised money or supported or financed advertising for Proposition 8, they don’t have the right to substitute themselves for the constitutional official In California that does have that right under the California constitution,” Olson says.
Olson will argue that to have legal standing the proponents have to show that they would suffer a direct harm if Prop. 8 is held to be unconstitutional.
“Here, the proponents were asked during the course of the trial, what damage would be done to heterosexual marriage if Proposition 8 was held to be unconstitutional and the lawyer for the Proposition 8 proponents said ‘I don’t know,’” Olson says. “You have to have a direct stake in the matter that’s being litigated.”
Today’s hearing will be broadcast and livestreamed on CalChannel (aka C-SPAN for state government). As they did in last week’s district court hearing on whether to release the tapes from the trial, Courage’s Rick Jacobs and Ana Beatriz Cholo will be providing tidbits and updates from inside the courtroom and the post-hearing press conferences. If you’re not able to follow along here, you can follow our Twitter feeds, @couragecampaign and @equalityontrial. And for those of you not able to watch the live-stream from work or wherever you are, I’ll be live-blogging the hearing so you can follow along. Lots of folks from the P8TT community will also be there. If you hear some legalese you can help define, or you note something interesting from the courtroom or from the hearing itself, send it on in to prop8trial at couragecampaign dot org.
If you’re new to Courage Campaign Institute’s Prop8TrialTracker.com, welcome! This is a blog dedicated to covering the Prop 8 trial and other issues of LGBT equality. We’re powered by a community sharing information and working together to gain equality for all LGBT individuals. Whether new or returning, you may notice a pop-up box asking if you’d like to sign up for updates and action alerts related to the trial (if you’ve seen it before, we’ve reset it once more for this morning since we have a lot of new folks coming in). As a community, we’ve banded together to influence the trial — most particularly related to the public’s right to view it, the subject of today’s hearing — and the more people we have working together, the more we can create change. We’ll keep your information private and only send you alerts we think you’d be most interested in. Thanks for signing up!
Let’s get this started with a few pieces of coverage on today’s hearing:
- As noted yesterday, Maura Dolan from the LA Times offers a preview.
- KTVU looks at the makeup of the court — although, it should be noted, today’s hearing is not about Prop 8 or the constitutionality of the measure, so observations on who’s a liberal and who’s a conservative and who spoke out against Prop 8 may not have much bearing.
- Marriage Equality USA will hold a “No Standing for Prop 8″ sit-in at 8 AM PST on the steps of the court. If anyone gets pictures, please send them in to the e-mail address above.
- American Foundation for Equal Rights provided a helpful FAQ on what standing is and what’s at stake today.
- Emily Bazelon, writing in Slate, hopes our side wins on the merits, not on the question on standing. “Let’s cheer if gay marriage opponents decide not to appeal — but not if they can’t,” she writes. Several of you have also made that argument in the comments. What do you think?
We’ll get the hearing thread started just before the court convenes.
Update: Ana sent in this photo of Courage members Thom Watson and Jeff Tabaco of Daly City outside the courthouse