California Attorney General Kamala Harris submitted a brief to the state’s Supreme Court earlier this week, arguing that state law does not allow the supporters of Proposition 8 — the 2008 voter approved ban on gay marriage — the right to defend the measure in court.
In the amicus brief, Harris argued that only the state’s executive branch should be able to defend state laws, because to allow defendant intervenors such a right robs the electorate of its power “by taking the executive power from elected officials and placing it in the hands of a few highly motivated but politically unaccountable individuals.”
The appeals court, questioned whether there is any authority under California law that would enable “Yes on 8″ proponents to represent voters who approved Proposition 8. Without any authority under state law, the panel suggested, the group might not have any “standing” at all to appeal the decision.
On Feb. 16, the California Supreme Court agreed to weigh in on the standing issue, and said it would make a ruling on whether Yes on 8 proponents have authority, under California law, to appeal a federal court ruling that Proposition 8 was unconstitutional.
Once the California Supreme Court issues its ruling, the 9th Circuit U.S. Court of Appeals panel will then make its final determination as to whether “Yes on 8” has standing to appeal. And, if the 9th Circuit says “Yes on 8” does have standing, it will also rule on the constitutionality of Proposition 8.