Can Prop. 8 Backers Defend Law in Court?

The California Supreme Court heard arguments today that could have far- reaching implications not only for same-sex marriage in California but also for future ballot initiatives like Proposition 8, which in 2008 barred gay couples in the state from legally marrying.

The question at today's hearing is about whether a group unaffiliated with the state government has the right to defend a state law in court -- in this case, Proposition 8. Former governor Arnold Schwarzenegger, current governor Jerry Brown, and Atty. Gen. Kamala Harris have all refused to defend the ballot initiative from challenges to its constitutionality. So the proponents of Proposition 8, who spent heavily and organized to pass the law, have been fighting to fill the void left by the state.

Lawyer Charles Cooper, representing the antigay ProtectMarriage.com, argued that other courts have allowed proponents of ballot initiatives to defend their laws because they have a specific interest. He related this to Karcher v. May, a case in New Jersey in which the Assembly speaker and president of the state Senate were removed from office, leaving no one to defend a state law. In that case, Cooper argued, the state's interest did not disappear but instead was transferred to another party. Cooper sees Prop. 8 proponents as agents for the government.

But one of the California justices, who peppered both sides with repeated interruptions and questions, noted that the Karcher case was based on a law, not a ballot initiative. Cooper was also pressed by a justice who asked him whether those against marriage equality would be able to show any actual injury if same-sex couples were allowed to legally wed.

After Cooper, it was lawyer Ted Olson's turn to be grilled. Olson, representing the gay and lesbian couples suing the state for marriage equality, received push-back from one justice who challenged his assertion that the state attorney general has authority to pick and choose which laws are worth keeping. After some prodding, Olson clarified that an attorney general must enforce the laws but does not have to defend them.

Justice Goodwin Liu, who was confirmed to the bench last week, asked Olson his opinion on whether the backers of Proposition 8 have standing to defend the law given they've put in the time and money to pass the ballot initiative. Olson said they don't. While ProtectMarriage.com and the other backers exercised their power to "propose and enact" policy, Olson argued that the California constitution doesn't award them any further power.

Justices seemed worried that agreeing with Olson could weaken the people's power at the ballot box, since Olson argues that a law's constitutionality can be defended only by the executive branch -- which also has the prerogative to let it go undefended in a legal challenge.

After the trial, Olson told reporters that the justices were tough, but he said he felt encouraged by the line of questioning, according to the Courage Campaign.

"There is ample authority that individuals do not have a right to defend a law unless they would suffer a direct and immediate harm from its invalidation," Olson said in a statement through the Americans Foundation for Equal Rights. "The proponents of Proposition 8 will not suffer any harm from a decision that grants gay and lesbian Californians their fundamental civil right to marry. It is the Attorney General who has the exclusive authority to make litigation decisions on behalf of the State, and here the Attorney General has made the sound decision that the discriminatory provisions of Proposition 8 do not warrant defense on appeal. Proponents cannot second-guess that exercise of discretion."

Chad Griffin of the foundation described Proposition 8 as "hanging by a thread." He added, "Today we have moved one step closer to marriage equality for all gay and lesbian couples across California."

Watch the complete hearing below.