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David Cruz’s Analysis of the Prop 8 Standing Decision

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David Cruz, the constitutional law scholar who has joined us a few times to discuss legal matters, has a detailed analysis of the standing decision over on his blog. He is of the opinion that the court did some law-making, as opposed to law-interpreting, with its decision:

The California Supreme Court issued the latest entry in the legal paper trail of the saga of Proposition 8 today. Prop 8, recall, is California’s initiative constitutional amendment that stripped same-sex couples of their previously fundamental right to marry under the California Constitution. Answering a question that had been certified by the U.S. Court of Appeals for the Ninth Circuit, the court ruled “that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under ... the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.” With this ruling, the dispute over Prop 8's constitutionality returns to the U.S. Court of Appeals for the Ninth Circuit, where that federal court now seems more likely to rule that Prop 8's official sponsors ("the Proponents") have the legal authority or standing to appeal Judge Walker's August 2010 decision holding Prop 8 unconstitutional....

Ordinary principles of statutory and constitutional interpretation thus would seem to weigh heavily against CASC's conclusion today as a matter of interpretation, and the court does not even pretend to try to parse the meaning of the provisions of law on which it claims it is basing its decision. The court's ruling thus is better understood not as an interpretation of state law but as a common-law holding, an interpolation, or a judicial construction, a rule the court chose to adopt to give effect to the values reflected in the California constitution and the state Election Code -- "to guard the people's right to exercise the initiative power."

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