California's same-sex marriage ban endured its latest legal test Tuesday as the state's high court grilled attorneys on whether Proposition 8's backers have legal authority to appeal a federal ruling that overturned the voter-approved measure.
The tenor of the justices' questioning during the more than hour-long hearing often leaned in favor of arguments by backers of the ban, who argue that the state Constitution gives ballot initiative proponents legal authority to defend their measures in court.
On that critical question, several justices noted that the California Supreme Court always has, as a matter of practice if not written policy, allowed the sponsors of ballot questions to appear before it when their measures were challenged.
"Never in any recorded (case) have proponents been denied the right to advance their interests," Associate Justice Kathryn Werdegar noted during the closely watched arguments. "The present state of California law is we allow liberal intervention."
The Supreme Court is examining the scope of the power afforded the official backers of ballot initiatives at the request of a federal appeals court that is reviewing a federal judge's year-old ruling that Proposition 8 violates the constitutional rights of same-sex couples.
The 9th U.S. Circuit Court of Appeals has expressed doubts about the ability of Proposition 8's sponsors to challenge the lower court ruling absent the involvement of California's governor or attorney general, both of whom agreed the ban was unconstitutional and refused to appeal.
But the 9th Circuit punted the question to the California Supreme Court earlier this year, saying it was a matter of state law. Although the appeals court still must decide for itself if Proposition 8's supporters are eligible under federal court rules to appeal the ruling that struck down the ban, the state court's input is likely to weigh heavily in its decision.
If the state Supreme Court says the ban's proponents did not have standing to appeal, and if the 9th Circuit and ultimately the U.S. Supreme Court ultimately agree, it could clear the way for same-sex marriages to resume in California.
If the court holds the proponents were qualified to appeal and the 9th Circuit agrees, the appeals court would then weigh the broader civil rights implications of Proposition 8. A decision on the ban's constitutionality is expected to be appealed to the U.S. Supreme Court.
While agreeing that the state Supreme Court has never refused to give initiative proponents a seat at the defense table, several justices quizzed Charles Cooper, an attorney for the coalition of religious and conservative groups that sponsored Proposition 8, on whether there was a difference between the court using its discretion to do so and issuing an opinion that would be binding on future courts.
Chief Justice Tani Cantil-Sakauye observed that in the vast majority of cases in which initiative backers have been allowed to defend their measures, they have been "standing shoulder-to-shoulder" with the attorney general's office, not acting on their own.
Cooper agreed that he was seeking to remove some of the court's discretion, but said the justices could draft their guidance so it would only apply to situations, such as with Proposition 8, where state officials have refused to defend laws already approved by voters.
Theodore Olson, the attorney representing the two same-sex couples who successfully sued in federal court to strike down Proposition 8, argued that permitting initiative sponsors to step in under such circumstances would infringe on the authority of elected state officials.
"There is nothing in the California Constitution or the statutes that give private citizens the right to take on the attorney general's constitutional responsibility to represent the state in litigation in which the state or its officers are a party," Olson said.
"Is there any authority for the attorney general and the governor to second-guess a majority of the population?" Associate Justice Ming Chin interrupted.
Olson answered yes, explaining that the attorney general is obligated not to defend laws he or she judges to be unconstitutional.
Associate Justice Goodwin Liu, who was sworn in on Thursday and serving his first day on the court Tuesday, picked up the line of questioning.
""It seems to me the 9th Circuit has set up a hoop the initiative proponents must jump through to get to appeal," Liu said. "Given the fact that initiative proponents clearly would have standing to appeal if this litigation was in state court ... why can't we read (the U.S. Constitution) to give the initiative proponents what they need to jump through that hoop?"
Associate Justice Joyce Kennard, who along with Werdegar was in the 4-3 Supreme Court majority that briefly cleared the way for same-sex marriages in California before voters passed Proposition 8, also questioned how the court could deny initiative sponsors the right to appeal in cases where state officials have refused to defend a law.
"It would appear to me that to agree with you would nullify the great power the people have reserved for themselves pertaining to proposing and adopting state Constitutional amendments," she said.
Werdegar suggested that the court could tell the appeals court that it ordinarily grants initiative proponents the right to defend their measures, but stop short of establishing a new legal precedent.
The court has 90 days in which to issue its opinion.