Prop 8 Protest

The court heard arguments from both sides on Tuesday, specifically to determine if backers of Proposition 8 had reason to continue defending it in court. Both the California governor and attorney general have refused to appeal or defend the measure in state court. 

Challengers of the proposition argue that only state officials have the right to strike the measure, but several of the Supreme Court justices appear skeptical. 

“You want the federal courts to answer this question with only one side represented?” asked Justice Ming Chin to same-sex marriage supporters. 

Supporters of Proposition 8 claim that California’s citizen initiative process does not allow elected officials the right to automatically veto citizen measures by not defending them in court.

“If we agree with your position, it would appear that we would nullify the great power the people have reserved for themselves,” Justice Joyce Kennard said to same-sex marriage supporters about the right for citizens to approve ballot initiatives. 

Still, proponents of Proposition 8 would need to prove actual injury should same-sex marriages resume, which same-sex marriage supporters contend would be difficult. 

The LA Times said that Justice Carol A. Corrigan said that dismissing this case would be equivalent to giving the governor and attorney general a “pocket veto,” which is not their right.

Proposition 8 was first passed nearly three years ago in 2008. 

In 2010, Judge Vaughn Walker ruled that ban on same-sex marriages unconstitutional. Supporters of Proposition 8 took the case to the U.S. Ninth Circuit Court of Appeals, but the court placed the final decision in the hands of the California Supreme Court judges.

This was so the California court would clarify whether state law allowed initiative backers special status to defend measures in court.

Should the California Supreme Court vote to allow the case to continue, it will return to the Ninth Circuit of Appeals. The federal court could then choose to dismiss the proposition, leave it intact, or put off the decision to assess the constitutionality of same-sex marriage. 

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