Proponents of Proposition 8 [text; JURIST news archive], California's same-sex marriage ban, on Monday urged the Supreme Court of California [official website] to allow them to defend the measure [brief, PDF] when state officials refuse to do so. Last month, the court announced that it would decide the critical procedural issue [JURIST report] to determine if the pending federal appeal of the invalidation of Proposition 8 can continue. The US Court of Appeals for the Ninth Circuit [official website] in January asked [JURIST report] the California Supreme Court to weigh in before proceeding with the appeal of the August ruling [JURIST report] by the US District Court for the Northern District of California [official website]. The uncertainty surrounding the proponents' standing is enhanced by the California Constitution's silence on the issue. In their argument for standing, the proponents emphasize the amount of work they have done to enact, support and defend the proposition up until this point, contending that this creates a "personal, particularized interest in the validity of their initiative entitling them to defend the initiative as real parties in interest if it is challenged in court." Moreover, they argue their entitlement is also derived from state law:
It is well settled under California law that official proponents, unlike mere political, ideological, or philosophical supporters of initiatives, may intervene to defend the initiatives they have sponsored if they are challenged in court. Indeed, this Court's precedent and established principles of California constitutional law make clear that allowing official proponents to intervene to vindicate the People's interest in successful initiatives when public officials will not do so is necessary to preserve the People's initiative power, a power that must be jealously defended by the courts.California state officials have consistently declined to defend the initiative, and, in September, a California appeals court held [JURIST report] that they are not required to do so. If the California Supreme Court rules that state law does not allow the proponents take up the defense, the court of appeals will likely dismiss the case.
Earlier this month, California Attorney General Kamala Harris [official website] requested [JURIST report] that the US Court of Appeals for the Ninth Circuit lift the stay order prohibiting gay couples from marrying while the appeal is pending. Harris argued that the appeal is unlikely to succeed in light of the aforementioned jurisdictional concerns and the recent US Department of Justice (DOJ) decision to stop defending the constitutionality [JURIST report] of portions of the Defense of Marriage Act (DOMA) [text; JURIST news archive] on the grounds that laws concerning sexual orientation should be subject to a higher standard of review. Harris also questioned the rationality of continuing to enforce the stay, noting that the measure's supporters would not be subjected to harm if the order was lifted, whereas same-sex couples seeking to marry may face violations of their constitutional rights so long as the stay remains effective. A three-judge panel for the Ninth Circuit issued the stay [JURIST report] last August.