The San Francisco Chronicle reports:
Among the arguments that supporters of same-sex marriage in California plan to make to the U.S. Supreme Court is that the sponsors of Proposition 8, the 2008 initiative that defined marriage as a male-female union, have no right to defend the state law in federal court.
It's an argument they might come to regret. If it succeeds, some legal analysts say the ruling may be so narrow that it benefits only the two couples who filed the suit, leaving Prop. 8 in effect for the rest of the state.
The uncertainty involves the concept of legal standing, the requirement that opposing sides in the case show they have something at stake so that the court is deciding an actual dispute and not just a theoretical argument.
The issue arose in the Prop. 8 case when the state attorney general - first Jerry Brown, then Kamala Harris - refused to defend the voter-approved state law, saying they considered it unconstitutional. When a federal judge declared Prop. 8 unconstitutional in 2010, the state agreed, leaving the fate of any appeal up to Protect Marriage, the conservative religious coalition that had put the measure on the ballot.
As private citizens, the coalition's members are unaccountable to the public and lack authority to enforce the law. But denying them standing would have left a voter-approved measure without a legal defense - as the California Supreme Court noted when it unanimously declared that Protect Marriage could represent the state's interests in an appeal.
The Ninth U.S. Circuit Court of Appeals adopted that recommendation before issuing its February 2012 ruling that also invalidated Prop. 8. But the nation's high court may have other ideas.
The justices have scheduled a hearing March 26 in the case and have asked both sides for arguments on the legal standing of Prop. 8's sponsors.
Coming from this court, the question has to be taken seriously. The conservative majority has narrowed access to the federal courts by denying standing to other litigants claiming intangible interests - for example, private citizens who object to White House funding for religious organizations.
If the justices deny standing to Protect Marriage, they would dismiss the group's appeal without deciding whether Prop. 8 was constitutional.
In July 2011, Engage: The Journal the Federalist Society's Practice Groups, published an article on the Proposition 8 case, including issues of standing, titled "Perry v. Schwarzenegger: Is Traditional Marriage Unconstitutional?" The author is George W. Dent, who is Schott-van den Eynden Professor at Case Western Reserve University School of Law. You can read the essay here.