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Prop 8 hearing puts ballot initiative powers in spotlight
By Benjamin Mann
Protectmarriage.com attorney Andrew Pugno
Protectmarriage.com attorney Andrew Pugno

.- On Sept. 6, California's Supreme Court heard arguments about a legal question that has less to do with marriage, than with the state's legislative process and citizens' right to propose ballot initiatives.

“Today's issue was not limited just to the marriage issue, but any initiative that comes along that a government official may fail to defend,” said Andy Pugno, a lawyer representing the organization Protectmarriage.com.

“It presents, really, a new question for our courts that they've never had to decide before: and that is, what do you do when the attorney general won't do his job?”

Pugno's organization is involved in two legal battles, one of which will establish their right to move forward with the other.

Protectmarriage.com wants to defend Proposition 8, which defines marriage as between one man and one woman, against opponents who say it violates the U.S. Constitution. The organization has stepped forward to defend the law in court, because – in a move Pugno calls “unprecedented” – California's governor and attorney general have refused to do so.

Before the group can defend Prop. 8 in federal court, however, it must prove to the California Supreme Court that it has the right to defend the law in place of the governor and attorney general.

Opponents of Prop. 8 say the organization that proposed the initiative has no such right. They maintain that Protectmarriage.com, having successfully passed the initiative in question, has no direct stake in the outcome of the court case that will decide whether it is constitutional. In that fight, they say, the group that proposed an initiative has no more legal standing than any private citizen.

But Pugno disagrees. He says his organization is now fighting not just to defend marriage, but to defend any group of citizens' right to propose and pass ballot measures, without the governor and attorney general exercising what amounts to veto power.

“The California constitution reserves this special power for proponents to draft and qualify and propose initiatives for the voters to vote on. And if it's passed and then it's challenged in court, and the government basically says 'We give up,' then really that has nullified or even vetoed all the efforts of the proponents who played an official role in sponsoring the initiative.”

In Tuesday's hearing before the state Supreme Court, he argued that the official advocates of an initiative enjoy a particular kind of right to participate in the lawmaking process. That right, he said, will be threatened if the executive branch of government can nullify an initiative, and also prevent its supporters from defending it.

“We're saying … there's a special role under California law that proponents carry out. Without proponents fulfilling that role, there would be no initiative. And so the proponents should be authorized to come and defend the effective exercise of the right to propose initiatives by amendment.”

“Otherwise, there's really nobody else who is suitable to stand in for the voters who passed it.”

If proponents cannot defend their initiatives in court, Pugno says, they end up in a position similar to an individual who cast a vote that was never counted.

“Just like if your right to vote is taken away if your vote is not counted in an election, the nullification of your right to propose and pass an initiative – just like the nullification of your vote – is a harm that we suffer directly.”

Even those who promote or accept the redefinition of marriage, he said, should be concerned by a betrayal of the legislative process. Pugno says their tactics are shortsighted, and serve to undermine democracy.

“The advocates of changing marriage in California are really so extreme that they're willing to do just about anything – even take procedural maneuvers that really don't make any sense, that really are bad law for other people and other cases in the future.”

“The fact that they're willing to throw the entire initiative power of the people itself out the window, just to achieve their goal with regard to gay 'marriage,' really signals some desperation.”


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