Assoc. Dean Amar Comments on Prop. 8 for KCBS, KPCV, Bee
Associate Dean Vikram Amar commented on the ongoing legal battle over Proposition 8 for media including Bay Area television station KCBS, Southern California Public Radio station KPCV, and the Sacramento Bee.
The California Supreme Court voted February 16 to assent to a request from the U.S. Court of Appeals for the Ninth Circuit to decide whether the sponsors of the ballot measure, which banned same-sex marriage in California, have legal standing to defend it under state law.
Amar told the Bee that ProtectMarriage, the initiative's sponsor, would have a greater chance of winning standing in federal court if the California Supreme Court finds it has standing under state law.
"It's possible the California Supreme Court could give feedback that makes it a much stronger case that federal standing exists," Amar said. "In the opposite direction, if the California Supreme Court said sponsors don't occupy any special role under state law, that would all but doom sponsor standing in federal court."
The standing issue has become critical in part because then-Attorney General Jerry Brown declined to defend the statute, leading to questions of whether an attorney general sworn to defend the state constitution has an obligation to defend an initiative passed by voters that amends the constitution. In an interview broadcast on the KPCV news program Patt Morrison, Amar noted that the California Attorney General also is sworn to uphold the U.S. Constitution, which supersedes state law.
"Jerry Brown's position as attorney general was that even though Prop. 8 was part of the California Constitution, he had to respect higher law, because the U.S. Constitution itself says that it is supreme whenever it conflicts with the state constitution, and his view was that Prop. 8 violated the 14th Amendment of the U.S. Constitution," Amar said. "So it's not so clear to say that someone is not living up to their oath when they decline to defend a statute if the reason they're declining to defend it is their belief that it violates a higher law to which they've also taken an oath."
Vikram Amar, Associate Dean of Academic Affairs and Professor of Law with the UC Davis School of Law, is a national authority in the fields of constitutional law, civil procedure, criminal procedure, and remedies. His biweekly column for FindLaw.com, a leading provider of online legal information, centers on his expertise in constitutional law.