Just a quickie diary on this. Blogger Joe Jervis (a/k/a Joe.My.God) is reporting that the long-awaited California Supreme Court ruling on regarding the standing of Prop 8 proponents to defend the ballot initiative will be issued tomorrow at 10 a.m.
Jervis is indicating the court is likely to rule in favor of the defendant-intervenors, that is, those who placed Prop 8 on the ballot in the first place.
In the unlikely event you're unfamiliar with the background, I'll give you some below the fold.
You probably all know that federal Judge Vaughn Walker issued a ruling in 2010 declaring Prop 8 to be unconstitutional and that that ruling was immediately appealed to the Ninth Circuit. The court decided that, before it could rule on the appeal, it would need to receive a ruling from the California Supreme Court as to whether, under California law, the backers of ballot measures had standing to appeal higher court rulings on the validity of those measures. The issue itself arose of course because neither former governor Arnold Schwartzenegger nor former Attorney General (and current governor) Jerry Brown were willing to defend the law.
Coverage of the state Supreme Court hearing seemed to indicated that the justices had a good deal of sympathy for the view that the backers of ballot measures should have the right to defend their measures (assuming they were approved by voters) against court challenges in the event the state declined to do so. Personally I find lots to dislike about that particular view. Ballot measures have the same validity as legislation passed by the state assembly and senate and signed by the governor. Legislators and the governor are elected officials, accountable to the electorate. The proponents of ballot measures on the other hand are accountable to nobody but themselves and the people who funded their efforts. It could be argued of course that legislation by ballot measure means that the majority of voters acted in the same capacity as those elected officials and that the people who put the measure on ballot ought therefore have the power to defend those measures from court challenges. While I don't agree, I do think there is some legitimacy to the argument.
Even if what Jarvis is saying turns out to be the case is in fact true, I don't think that this will really help the case of the backers of Prop 8 in the long run. Such a ruling will certainly prolong the case further but there is every indication that federal law regarding standing is going to have a very different view of the situation and, even if it does not, Walker's opinion was pretty much air-tight. There is very little reason to think that any higher court would overturn it on its merits. Not that it couldn't happen, but the logic behind such a conclusion would be extremely tortuous given the record created in the initial hearing and in the related challenges to DOMA. I actually suspect that the US Supreme Court will be anxious to avoid taking the Prop 8 case if it can possibly avoid doing so.