Rachael Myrow: The State Supreme Court this morning hears arguments over a question that could ultimately determine whether same-sex marriage becomes legal in California. As The California Report's Scott Shafer explains, it's a matter of who gets to represent the voters in court.
Scott Shafer: Whenever a state law is challenged, the Governor and Attorney General are charged with defending it.
But after a federal judge struck down Proposition 8 last year, neither Governor Arnold Schwarzenegger nor then-Attorney General Jerry Brown appealed the ruling.
That left only the proponents of Prop. 8 defending it.
But do they have legal standing to represent the voters in California when no one else will?
Federal Judge Stephen Reinhardt wasn't sure, when the case came before the Appeals Court last year.
Judge Stephen Reinhardt: Why shouldn't we ask the California Supreme Court what the law is in California?
Shafer:That's exactly what the Appeals Court did. Today, the State Supreme Court will hear arguments on both sides of this legal standing question.
To Yes on 8 Attorney Andy Pugno, the answer is obvious.
Andy Pugno: If we don't have standing to defend the initiative that we qualified, promoted and enacted into law, then nobody will.
In Pugno's mind, if they can't defend their own measure, it throws the entire initiative system into doubt.
Pugno: And it's really an absurd result that you can have the people trying to execute this fundamental right to pass laws by themselves. And Governor and the Attorney General can veto that by refusing to defend it in court.
Shafer: By definition, to have standing in court a party must show they have a personal stake in the outcome.
Theodore Boutrous, one of the attorneys fighting Prop. 8, says the proponents of the ballot measure don't meet that standard.
Theodore Boutrous: They can't identify harm to themselves or anybody else by the enactment of marriage equality and by allowing everybody to get married.
They have no harm. They have no standing.
Shafer: But University of California Davis law professor Vik Amar says it's a gray area of state law -- there's not a lot of legal precedent the court can rely on.
Vik Amar: It certainly has a lot of leeway to come up with an answer that it thinks is best today.
Shafer: While some ballot measures are written to include language granting proponents the right to defend it in court if no one else will, Amar notes Prop. 8 did not.
Amar: And so the question is whether they are good representatives or good surrogates for the voters when the voters never really gave them that power in the text of Prop. 8 itself.
Shafer: The sponsors of Prop. 8 didn't write it that way.
If the justices tell the 9th Circuit Court that these ballot proponents do not have legal authority to defend Prop 8, the lower federal court decision striking it down will likely stand.
The State Supreme Court has three months to decide.
For the California Report, I'm Scott Shafer.
