California's attorney general has again come out against the state's same-sex marriage ban, this time telling the state Supreme Court the proponents of successful ballot initiatives do not have the right to defend their measures in court.
Kamala Harris, a Democrat who succeeded Gov. Jerry Brown in January as attorney general, submitted an amicus brief Monday in the ongoing legal dispute over the voter-approved ban known as Proposition 8.
In it, she argued that only public officials exercising the executive power of government have authority to represent the state when laws passed by voters or the Legislature are challenged.
"California law affords an initiative's proponents no right to defend the validity of a successful initiative measure based only on their role in launching an initiative process," Harris wrote.
The question of where the role of ballot measure backers ends is critical to the legal fight over California's ban on same-sex marriages. Both Brown and former Gov. Arnold Schwarzenegger refused to defend the 2008 constitutional amendment on appeal after a federal judge struck it down last summer as a violation of civil rights.
Proposition 8's sponsors asked the 9th U.S. Circuit Court of Appeals to allow them to step in, but the court punted the question to the California Supreme Court earlier this year, saying it was a matter of state law.
If the sponsors are not permitted to intervene, the lower court ruling overturning Proposition 8 will stand.
Lawyers for the coalition of religious and conservative groups that qualified the gay marriage measure for the ballot and campaigned for its passage have argued that initiative proponents need to be allowed to advocate for laws in court to prevent elected officials from effectively vetoing measures by not defending them in court.
Harris contended in her brief that rather than empowering citizens, granting the sponsors of initiatives the ability to overrule the governor and attorney general's judgment "would rob the electors of power by taking the executive power from elected officials and placing it instead in the hands of a few highly motivated but politically unaccountable individuals."
The California Supreme Court is expected to hold a hearing in the case before the end of the year.
Republican State Sen. Tom Harman of Orange County introduced a bill that would grant ballot measure sponsors the right to represent the state when elected officials refuse to defend enacted laws in court. The Senate Judiciary Committee defeated it on a 3-2 vote Tuesday.