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Prop. 8 analysis: Federal appeals panel might return some issues to state Supreme Court

Mcdonald The first portion of the Prop. 8 appeals court hearing has focused in part on whether foes of gay marriage have standing to appeal.

Barry P. McDonald, a professor at the Pepperdine School of Law, says the issues being made in court go well beyond the questions of marriage. Here's an analysis he provided to The Times:

On whether the Prop. 8 sponsors or Imperial County have standing to appeal the district court's ruling, the appellate panel appears to be leaning toward "certifying" the complex questions of California law to the California Supreme Court for an answer. The certification process is one where federal courts, as a matter of federal-state respect, can ask a state supreme court to answer a question of state law that is at issue in a federal law case.

Certifying the question to the state Supreme Court will considerably lengthen the course of this litigation, as it would likely take that court six to 12 months to address this issue. It seems to me that the appellate panel is leaning this way, not only to avoid deciding difficult questions of constitutional law unnecessarily, but because they are troubled by the fact that the attorney general and governor would effectively be voiding a law adopted by a majority of Californians by refusing to defend it in court. And so we can see that policy questions may also have an effect on how the judges decide this case.


Imperial County's role in defending gay-marriage ban questioned

Judges question whether gay-marriage foes have legal standing

Judges must decide whether backers of same-sex marriage have legal standing to appeal, UC Irvine Law School dean says

Photo: Barry McDonald. Credit: Pepperdine University

Comments () | Archives (2)

It seems to me that members of the executive branch are obligated only to execute the laws, not to defend them to the judicial branch. Rather than undercutting democracy, this system seems to me to represent the system of checks and balances. If California wants it differently, they can pass legislation to obligate members of the executive branch to defend laws to the judicial branch. However, even that measure does not guarantee the quality of the defense.

To complicate the matter of standing, allowing standing to the proponents seems to assume that all proponents were united in their legal justifications for passage. In the end, the plaintiffs challenge the execution of the law as it was passed, not the justifications of each and every person who voted for the law.

To me, this seems silly. The proponents don't have standing and the lack of defense by the executive actors (pun intended) is less a functional veto than a judicial check on the legislative process (which seems horribly flawed in California). It's the nature of the California legislative system.

It seems to me that the only justification for standing of the proponents is goal-seeking. That is, the very same people who laud a stark application of verbatim law (especially without empathy) oppose the application of standing criteria to themselves because they wouldn't get what they want.

The proponents are not named defendants, nor do plaintiffs have to name as defendants everyone who voted for something. The plaintiffs challenge the Constitutionality of the law as it stands and is enforced. It simply does not matter what the rationale of passage was (though it might sometimes seem that way, based on the discussion of pretext for undue discrimination).

I think the executives' lack of defense is less a functional veto than a judicial check on California's silly legislative processes.


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