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Proposition 8 Group Holds Fast to Standing Claims

(CN) - Proponents of California's gay marriage ban filed a new brief with the state Supreme Court, attacking the "circular" logic of gay marriage advocates who claim that the conservative group lack standing to defend Proposition 8 on appeal.

"[I]nitiative proponents have authority under state law to represent the State's interest in defending the validity of initiatives; in doing so, official proponents act as agents of the People, to whom this interest ultimately belongs," according to the brief authored by Chris Cooper, a lawyer for

Those opposed to the gay marriage ban had argued in a brief earlier this month that ProtectMarriage is out of luck because it lacks authority under the California Constitution to take up a fight that the governor and state attorney general have abandoned.

Cooper countered Tuesday that the authority exists in state precedent. "[T]he California courts have repeatedly allowed official proponents to vindicate the People's interest in defending initiatives when elected officials will not," according to the 40-page argument, supplemented by 12 additional pages.

Though the opponents claim that ProtectMarriage had its day in court as an intervenor in the trial where Proposition 8 was struck down as unconstitutional, the voter initiative's backers say they entitled to an appellate review.

"Indeed, the California Constitution requires State agencies to enforce state law unless it has been invalidated by an appellate court," the reply brief filed Monday states (italics in original).

The proponents also vigorously contested the argument that they are trying to undermine the attorney general's authority.

"[R]ecognizing Proponents' authority to defend their initiative in no way prevents the Attorney General from litigating in whatever manner he or she chooses," the brief states. "Contrary to Respondents' straw man contentions, Proponents do not seek to compel the Attorney General to defend Proposition 8 or to appeal the district court's judgment. Rather, Proponents simply maintain that they are authorized under California law to defend their initiative on behalf of the People if public officials refuse to do so and that this authority includes power to notice an appeal if necessary."

The California Supreme Court took up the case from the 9th Circuit in February after the federal appeals court judges had said they were unsure how to handle the case. Former Gov. Arnold Schwarzenegger and former state Attorney General Jerry Brown, now California's 39th governor, would not defend Proposition 8 or appeal the landmark ruling by Chief U.S. District Judge Vaughn Walker that found the voter initiative was unconstitutional.

Both the state Supreme Court in September 2010 and an appellate court refused ProtectMarriage's request to force the elected officials' defense of the voter initiative. ProtectMarriage filed its opening brief in March. About a week later, the 9th Circuit refused to let gay couples resume marrying "at this time" in California during the courts' consideration of the appeal.

Prospective amici curiae have until May 2 to submit proposed briefs and a request for consideration.

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