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Will a Technicality Save Gay Marriage?

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Perhaps the most important civil rights issue of the day will be before a federal appeals court this afternoon (Monday). But will gay marriage in California win on a technicality?

After legal all-stars Ted Olson and David Boies, who represented Bush and Gore respectively in the contested election of 2000, joined together to bring suit on behalf of gay couples seeking to overturn California's Proposition 8, both Governor Arnold Schwarzenegger and Attorney General Jerry Brown refused to defend the ban on same-sex marriage. The California officials said they thought the law was unconstitutional and nothing in state law required them to defend it.

The trial court judge, Vaughn Walker, allowed two organizations that sponsored the initiative, ProtectMarriage.com and the Campaign for California Families, to step in and mount a defense of the law. Walker subsequently ruled that Proposition 8 violated the U.S. Constitution by denying gay people the fundamental right to marry and the equal protection of the laws.

The initiative sponsors appealed that decision but now they face the real possibility of being removed from the case for lack of what lawyers call "standing." That's a legal principle that requires every party to a dispute to show that they would be affected in some concrete way by the law or by the court's decision. The Supreme Court has long held that simply disagreeing with a law isn't sufficient injury to confer standing.

There's no doubt that the gay couples who brought the case have standing or that the Governor or the Attorney General, had they chosen to defend the law, would have had standing. Whether sponsors of the initiative have it, however, is another matter. In fact, the Supreme Court suggested not long ago, in a case very similar to the one being heard today, that sponsors of an initiative probably do not.

The case was Arizonans for Official English v. Arizona, a 1997 decision involving a challenge to a ballot proposition passed in Arizona mandating official state business to be conducted in English. The governor, however, refused to defend the law and an organization that sponsored the proposition intervened. The Supreme Court ended up deciding that case on other grounds, but suggested that initiative sponsors are not proper parties to defend a state law.

"Standing to defend on appeal in place of an original defendant," the Supreme Court explained, "demands that the litigant possess 'a direct stake in the outcome.' The decision to seek review is not to be placed in the hands of 'concerned bystanders'" but should be left to state officials, like the state's executive or legislators.

Arizonans for Official English and its members, the Court said in a unanimous decision, "are not elected representatives, and we are aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials the constitutionality of initiatives made law of the State. Nor has this Court ever identified initiative proponents as . . . qualified defenders of the measures they advocated."

There may be good reasons why initiative sponsors generally should have standing to defend ballot measures when state officials refuse to do so. The initiative process was designed to empower the people to make laws when state officials refused. The very purpose of direct democracy could be undermined if state officials could simply ignore the voters' will and no one would be able to defend the law in court.

Yet, Supreme Court language, not democratic theory, controls the outcome of constitutional cases. As in Arizona, no statute in California clearly provides initiative sponsors with standing.

If the federal court of appeals decides that the Supreme Court's language from the Arizona case is controlling, the judges will declare that no one involved in the case has standing to defend Proposition 8. The gay couples represented by Olson and Boies would win by default -- and gay marriage would no longer be banned in California.

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