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Making Sense of What’s Next After Ruling on Prop 8

SACRAMENTO–

If you aren’t gay and hoping to get married, or weren’t passionate about stopping those who do want to, you might not have been paying too much attention to Wednesday’s  U.S. Supreme Court decision on Prop 8.

But, there are actually more than two sides to this debate — and the ruling could have a lot more to do with your life than you think.

For millions, Wednesday’s word from the highest court in the land meant celebration.

For millions of others, it meant frustration.

“I’m here today on behalf of the seven million voters in the state of California to express our disappointment. We believe that every vote should count,” said Prop 8 spokesperson Jennifer Kerns from outside of the Supreme Court.

“The question of whether the people will get to decide for themselves how marriage will be practiced in their states, appears to await another day,” said Rev. Ron Schenck with the Evangelical Church Alliance.

What will also have to wait, according to Jon Coupal with the Howard Jarvis Taypayers association? Fair court representation for the voting public.

It’s all about who has standing — which is the legal term for having a legitimate stake to bring a court action.

Critics say the move by the “High 9,” to deny standing to the backers of Prop 8 could eventually hurt liberals and conservatives alike.

“The initiative process is really the people’s process and a way to bypass elected officials. And unfortunately what they said today was that initiative proponents don’t have standing to pursue in federal court, if the elected officials of the state decide not to defend an initiative,” Coupal said.

That’s what happened with Prop 8.

Years ago, UC Davis associate law school dean and professor Vikram Amar was among the first to predict this case would come down to standing. The high court made much the same decision in a 1996 case out of Arizona.

Though supporters of Prop 8 were acting on what voters said at the polls despite what happened in an appeals court, no election sanctioned them to do it.

“No one voted for them.  Even the people who voted for Prop 8 didn’t vote for these guys. They voted for prop 8,” said Amar.

Amar can see one future fix that might eliminate elected officials killing off the “check and balance” on them provided through the initiative process by not defending these measures in court.

“If Prop 8, when it was written and out on the ballot, said something like if this measure is challenged and the governor won’t defend it the sponsors can step in to defend.  If Prop 8 had these words or something like them, that would be a very different case,” said Amar.

No guarantees about how justices on the U.S. Supreme Court might react to such language. Their decision provided no hints about how initiative sponsors might secure standing.

Amar believes now there’s no real way for supporters to revive Prop 8. He says a county clerk could refuse to issue marriage licenses, claiming they were not bound by Judge Walker’s lower court ruling because they didn’t participate in that case.

The Supreme Court’s Wednesday action means that lower court reversal of the Prop 8 gay marriage ban stands.

A clerk could try to intervene legally in the case on that basis, but he thinks that would be highly unlikely.

Coupal’s group hopes to build a coalition to propose a constitutional amendment to remedy the “standing” issue for initiative sponsors.

 

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