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.