Lawyer Ted Olson returned to court on
Tuesday to argue that proponents of Proposition 8 don't have the
legal standing to defend the amendment in court.
The 10AM hearing before the California
Supreme Court was the latest round in the legal challenge to the 2008
voter-approved amendment to the California Constitution which
overturned the high court's ruling legalizing gay marriage in the
Protect Marriage, the coalition of
socially conservative groups which put Proposition 8 on the ballot,
argued that it should be allowed to defend the amendment in court.
Lawyer Charles Cooper told the justices
that proponents of an initiative have the right to propose valid
“So, it is integral and inescapable
that they have the right to defend the validity of that measure,
whether it's challenged before enactment or it's challenged after,”
Protect Marriage last year stepped in
to appeal a federal judge's ruling declaring the law unconstitutional
after state officials refused to defend the law in court.
At issue is whether the group has the
legal right to represent the people of California in the lawsuit.
If the high court decides proponents do
not have the legal standing to intervene, then the federal court's
order would likely become law, and the marriages of gay couples in
California would resume. Such a resolution would have limited effect
outside the state.
Olson, arguing for the plaintiffs –
two gay couples who wish to marry in California – told the justices
that allowing proponents of an initiative to take the place of
elected officials in such instances would undermine the authority of
the California attorney general.
“Initiative proponents are elected by
no one,” Olson said. “Proponents took no oath to represent the
In a statement released after the
hearing, Olson added: “The Proponents of Proposition 8 will not
suffer any harm from a decision that grants gay and lesbian
Californians their fundamental civil right to marry. It is the
attorney general who has the exclusive authority to make litigation
decisions on behalf of the state, and here the attorney general has
made the sound decision that the discrimination provisions of
Proposition 8 do not warrant defense on appeal. Proponents cannot
second-guess that exercise of discretion.”
The court has 90 days to rule on the