Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.Although the question is limited, the stakes are not. If the state Supreme Court rules, most likely within 90 days of oral arguments, that the heterosexual supremacists who drafted and promulgated Proposition 8 now have no legal standing to defend its constitutionality, it is very likely a 3-judge panel of the 9th U.S. Circuit Court of Appeals will follow that decision and rule that the Proposition 8 proponents have no standing to defend the measure in federal court, either.
In that case, the lower court's decision would go into effect and federal Judge Vaughn Walker's brilliant ruling determining that Proposition 8 violates the United States Constitution would go into effect. Of course the bad guys would probably appeal to the Suprem Court but since the case would only be about California (and California law) it is unlikely that SCOTUS would take the case. There is a possibility that SCOTUS would take the appeal to try to clarify once and for all whether proponents of state ballot measures who are not named plaintiffs in lawsuits have a right to continue appeals when the named plaintiffs fail to appeal but there's already a decision called Arizona for Official English vs Arizona in which SCOTUS basically says you need a particularized interest under state law in order to pursue a federal appeal. And it is precisely that question of whether a particularized interest exists under California law that the California Supreme Court will decided, by the end of 2011.
Another wrinkle is that the 7-member Supreme Court has recently lost its most pro-gay member, Carlos Moreno, and Governor Brown only announced his replacement, Goodwin Liu, who is probably as similarly pro-equality as Moreno, this week. If Liu is not on the court by September 6th, the court will probably name a state appellate judge to hear oral arguments and participate in the decision.
Hang on to your hats, folks, it's gonna be a bumpy ride!
