In a small but interesting development, a bill that would have granted supporters of the 2008 voter enacted same-sex marriage ban, Proposition 8, standing under state law to appeal a federal judge’s August 2010 ruling that Prop. 8 is unconstitutional was defeated in senate committee this week.
The Sacramento Bee reports that the Senate Judiciary Committee rejected the bill in a 3-2 party-line vote. Republican sponsor of the bill Senator Tom Harman, who introduced a similarly unsuccessful measure once before, said that the legislation was necessary to defend the will of the people: “California voters deserve to have their position defended when an initiative is challenged in court and the State refuses to defend it.”
While not specifically mentioning any one court case, the import of Senate Bill 5 was clear in that would have helped solidify the position of Proposition 8 supporters whose standing is currently at question.
LGBT rights organizations argued during committee hearings that such a law would interfere with judicial powers to decide who has standing.
Normally, the state’s administration would defend state laws before the courts, but the anit-gay group ProtectMarriage intervened in the Prop. 8 case when both then-governor Arnold Schwarzenegger and then-attorney general Jerry Brown declined because they believed the 2008 ballot measure was unconstitutional.
While given grace by Judge Vaughn Walker to intervene in the case, ProtectMarriage, as defendant-intervenors, were not automatically granted the right to appeal and there have been doubts raised by both Judge Walker’s original ruling and by the 9th Circuit Court of Appeals, with whom this case now rests, as to whether defendant-intervenors have federal standing to appeal.
As such, the issue of defendant-intervenors’ standing is now before the California Supreme Court where it is to be determined whether there is any state law that would grant them a right to appeal.
In related news, California attorney general Kamila Harris filed an amicus brief with the supreme court earlier this week in which she said that defendant-intervenors do not, and should not, have standing.
Only the state’s executive branch should be able to defend state laws, she wrote, because to allow defendant-intervenors such a right robs the electorate of its power “by taking the executive power from elected officials and placing it in the hands of a few highly motivated but politically unaccountable individuals.” Read more on that here.