One way the United States Supreme Court can decide the Proposition 8 case is to determine that the proponents of the measure defending the law should not have standing to appear in the court. That would be wrong.
The proponents stepped in when state officials refused to defend the law passed by the voters. If the people’s representatives refuse to stand up for a law the voters support, there should be someone in the courtroom to express the opinion of the majority.
I say this not as a supporter of Proposition 8, which I am not, but as an advocate for the initiative process.
In the Supreme Court hearing, both Chief Justice John Roberts and Justice Ruth Bader Ginsburg questioned whether the Prop 8 sponsors should be allowed to defend the law. Ginsburg asked: “Have we ever granted standing to the proponents of a ballot measure?”
Justice Anthony Kennedy, a Californian, pointed out that California law gives great responsibilities to ballot measure proponents.
Beyond that, how can the court make a wise judgment if they are denied presentations from advocates on both sides of a contested issue?
I had a similar objection to Governor Gray Davis’s maneuver to decide an issue related to Proposition 187, the anti-immigration measure. Davis ordered court mediators to decide the issue of education for immigrants affected by the measure. On both sides of the mediation table would be opponents of the measure. As I wrote in a Los Angeles Times op-ed published in June 1999, “whether Proposition 187 is right or wrong” the issues and constitutionality of any measure should be determined in open court “with both sides of the argument – true supporters and real opponents – making the case for and against it.”
Legitimacy for any court decision would come only if there is a fair and equitable hearing on the arguments.