I am in San Francisco today, observing the Prop 8 hearing on behalf of NOM. The issue in today’s hearing is standing: who has standing to defend Prop 8 in court against legal attacks.
This issue is significant for several reasons. First, the State of CA has the responsibility of defending its laws in court. That’s right: Proposition 8 is a duly enacted law of the State of CA. The people passed this initiative in a highly visible election that was not even a close call, 51% to 49%, approximately the same percentage of the vote that elected Barack Obama President of the United States.
Second, the elected officials charged with this duty, the Attorney General and the Governor, have consistently refused to perform their constitutional duty. They only enforce the parts of the law they like, I guess.
Third, given the above, the proponents of the ballot initiative, that is, the committee of people who legally filed the paperwork to get it on the ballot, have asked to have standing to defend Prop 8 against the absurd and frivolous legal attacks mounted on it. If the Proponents do not have standing to defend Prop 8, then no one does.
Fourth, if no one has standing to defend Prop 8, then this is, for all practical purposes, the end of the initiative process in CA. Any ballot measure can be taken down by even the most absurd and frivolous legal challenges, and those challenges will be the final word, by default. If the officials of the state refuse to do their constitutional duty, and no one has the right to defend a ballot measure, then there is no point putting initiatives on the ballot in the first place.
That is what is at stake in today’s hearing.