- The Washington Times - Tuesday, September 6, 2011

Can proponents of a California citizens’ initiative defend it in federal court if state officials refuse to do so?

This unprecedented question was taken up by the California Supreme Court on Tuesday, pitting an attorney for the Proposition 8 marriage law against an attorney for gay couples who wish to overturn it.

The high court’s decision will guide the 9th U.S. Circuit Court of Appeals, which is questioning whether the backers of Prop 8 have legal standing to defend the voter-passed law in their court.

In an hourlong hearing Tuesday, lawyer Charles Cooper, representing ProtectMarriage.com, said the California Supreme Court has a solemn duty to guard the people’s initiative power, which, he said, includes the inherent right to defend it if no one else will.

But lawyer Theodore Olson, who is representing the American Foundation for Equal Rights, told the court that there was “nothing in the California Constitution or statutes” that gives private citizens the right to take over the job of the attorney general or other state officials.

Citizens have the power to propose and pass initiatives, but not the power to enforce or defend them, Mr. Olson said. When asked whether this meant that “no one can defend” an initiative if the state officials do not, he answered “yes.”

The court did not seem to like that answer. “It would appear to me,” said Associate Justice Joyce L. Kennard, that if the court agreed with Mr. Olson’s side, it “would nullify the great power that the people have reserved for themselves” to propose and enact an initiative.

If state officials refuse to defend an initiative, “what happens to the state’s interest… . Does it evaporate?” asked Chief Justice Tani Cantil-Sakauye.

Justices also did not like the idea of the executive branch having “a pocket veto” - a way to throw out a law it didn’t like without going through the judiciary. It’s not for the executive branch “to decide what is constitutional,” said Associate Justice Carol A. Corrigan.

Other questions focused on the idea of having a lawsuit proceed without a “vigorous defense” from all sides. “You want the federal courts to answer this question with only one side represented?” Associate Justice Ming W. Chin asked Mr. Olson.

Mr. Olson agreed that, theoretically, all sides should have such a defense, but he insisted that the Prop 8 supporters did not have standing to replace the duly elected, accountable state officials in such a case.

Mr. Cooper countered that Prop 8 supporters should have standing, since the power to propose and pass an initiative would be “nullified” if state officials refused to defend it, and initiative proponents were blocked from defending it in court. That would be the “injury,” Mr. Cooper said, in response to sharp questions about who would be harmed if courts did not rule his way.

Prop 8, which was passed by 52 percent of voters in November 2008, says only marriages between one man and one woman are valid and legal in California. It effectively halted gay marriage after a five-month period during which it was legal.

Prop 8 has been in court ever since, and gay-marriage supporters won a victory when U.S. District Court Chief Judge Vaughn Walker found it unconstitutional in August 2010. ProtectMarriage.com appealed, and three judges on the 9th Circuit Court of Appeals heard arguments in December, but sent the question of “standing” to the California Supreme Court in January.

The California Supreme Court has 90 days to rule. The case is Perry v. Brown.

• Cheryl Wetzstein can be reached at cwetzstein@washingtontimes.com.

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