I’ve opined several times before that the legal concept of “standing” should be interpreted broadly, particularly in the realm of Constitutional law, with an eye towards encouraging litigation of disputes on their merits. Too often the courts choose to attack a litigant’s standing as a way of avoiding making an actual decision on the merits of a case. Well, that won’t be happening with the Prop. 8 case. The California Supreme Court has made clear that the proponents of Prop. 8 do, in fact, have standing to defend that law despite the refusal of the Attorney General and the Governor to do so.
Now, as of the time of writing this post, I’ve not read the meat or reasoning of the opinion. I’m only aware of the conclusion:
…when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state‘s interest in the initiative‘s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.
This is an entirely satisfactory resolution of this particular issue to me. Although it places the day of ultimate victory further away, advocates of same-sex marriage should consider this a victory, not a setback. The proponents are well-motivated to defend the law that they themselves wrote and considered important enough to take the trouble of putting on the ballot and advocating. Consequently, they will give their law the full-throated defense that it needs in order for the judicial analysis of that law’s conformity (or lack thereof) with the Federal Constitution to be meaningful and worthy of intellectual respect. And it allows the Attorney General and Governor to express their judgment about the law’s Constitutionality.
The rule of law requires that everyone be able to respect the legitimacy of the judicial process. This decision furthers that concept by encouraging advocacy and developing a meaningful adversarial process; it is very important that the side which loses the case understand that it was treated fairly, and did not lose for some arbitrary reason. So, let us now move forward to consideration of the merits of the legal issue, and not again be sidetracked by any further procedural smokescreens, raised by anyone.