SAN FRANCISCO (CN) – The California Supreme Court seems likely after a hearing Tuesday to let a conservative group step in for the state reluctant to defend the constitutionality of a law banning gay marriage.
Chief U.S. District Judge Vaughn Walker had struck down the law passed by Proposition 8 in a landmark ruling last year.
Former Gov. Arnold Schwarzenegger and former state Attorney General Jerry Brown, now California’s 39th governor, refused to defend Proposition 8 or appeal Walker’s ruling that found the voter initiative was unconstitutional.
ProtectMarriage.com, a Sacramento-based conservative legal group behind Proposition 8, intervened to fight after it failed to force the legislators’ hand.
The 9th Circuit punted the issue to the state high court in January because it was unsure how to proceed with the appeal.
Tuesday’s hearing came after an expedited briefing period, as California’s ban on gay marriage has remained in place pending the outcome of this appeal.
ProtectMarriage attorney Charles Cooper says his clients have a direct interest in defending the case on appeal.
Theodore Olson, attorney for two same-sex couples challenging the ban, argued that ProtectMarriage should not be allowed to step in for Gov. Jerry Brown and Attorney General Kamala Harris.
“Does the initiative power convey with it the power to represent the state covey to the proponents? I submit that the answer is no,” he said. “I stand here not as someone who wants the intervenors not to have certain rights to present certain arguments. But standing is something we cannot waive.”
The justices pummeled Olson with questions. “It is better in our court system to have both sides represented,” Justice Ming Chin said. “Do you agree with that?”
Olson replied, “I think in an abstract world where we don’t have the separation of powers you might invite all kinds of citizens to present all kinds of issues.”
Ming responded: “I just want to have the best arguments on both sides given to the court so we can make the best decision possible. But when you have one side not represented it seems to me the right is illusory.”
Justice Joyce Kennard echoed this logic.
“It appears to me that to agree with you would nullify the great power that the people have reserved for them to them for proposing and adopting constitutional amendments,” Kennard said.
Justice Kathryn Werdegar noted the court’s history of allowing “liberal intervention” by proponents. “Never have proponents been denied a right to intervene,” she said. Justice Carol Corrigan bristled when Olson said Brown and Harris’ refusal to defend Prop. 8 signified the initiative’s unconstitutional nature. “It is not for the executive branch to determine questions of constitutionality,” Corrigan said. “They do not by pocket veto get to decide whether something is constitutional.”
The Supreme Court is expected to rule within 90 days.