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Prop. 8 supporters may have standing to continue appeal

by Brad A. Greenberg

September 6, 2011 | 3:38 pm

We’ve spent the past two weeks talking about standing issues in my federal courts class. Today, while my class continued that discussion, the California Supreme Court took it up in the Prop. 8 case, Perry v. Brown.

California officials have declined to defend the law prohibiting gay marriage. The Ninth Circuit, which is hearing the appeal of Judge Walker’s ruling invalidating the law as unconstitutional, asked the California Supreme Court to determine whether supporters of the ballot initiative have standing to defend the law and appeal Walker’s decision.

But proponents of the law have argued that a law passed via a voter ballot measure is different than a law coming out of the Legislature. And the state’s high court appeared to agree, according to the Los Angeles Times:

Accepting the Proposition 8 opponents’ position would be “nullifying the great power that the people have reserved for themselves” to propose and pass initiatives, Justice Joyce L Kennard said.

“Who is there to defend the initiative measure?” she asked.

Chief Justice Tani Cantil-Sakauye also suggested the initiative process would become “illusory” if no one could step in to argue for measures that state officials refused to defend, as they have in the case of Proposition 8.

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