Today, the California Supreme Court will hear oral arguments on the federal Prop 8 case – after the Ninth Circuit punted to them the question as to whether private right-wing advocates who put Prop 8 on the ballot have standing, under the California Constitution, to appeal Judge Walker’s decision. Because Attorney General Kamala Harris has declined to appeal, it’s an open question as to whether Prop 8 proponents – who were allowed to intervene in the January 2010 federal trial – can now appeal to the Ninth Circuit. If they can’t, the trial decision will stand – and gay couples could finally marry in California. There’s a very strong case that Prop 8 supporters have no standing – one must have suffered a “concrete and particularized” injury to appeal. And the mere fact they were allowed to intervene at trial does not grant them the right to appeal an adverse decision. Moreover, giving them that chance would empower unaccountable private interests to effectively represent the state, after elected officials use their discretion not to appeal. But the last time the state Supreme Court got involved – in May 2009 – they likewise blew a hole in the initiative process.

“Standing” – it’s one of the fundamental requirements a party must have to be heard in Court. In order for the Court to even consider your claims, you must prove that you have an actual stake in the litigation – and have suffered a particularized injury. Mere status as a taxpayer, or a strong disapproval of the policy, is not enough – you must prove that this case affects you in a distinct way from the general population.

Right-wing proponents of Prop 8 are no doubt upset Judge Walker invalidated the initiative – but what they can’t prove is that they are harmed by the prospect of gay couples getting married. Ultimately, this legal conflict is between same-sex couples who cannot get married, and the State of California’s prohibition.

Just because the district court allowed you to intervene at the trial level does not make you a “party” to this case – which allows you to appeal after losing. In Diamond vs. Charles (1986), the U.S. Supreme Court denied a doctor’s right to appeal a court’s ruling of an Illinois abortion law – even though he had been allowed to intervene at the trial level. In order to appeal an adverse decision, he would still have to prove standing.

In fact, the closest precedent to Prop 8 on this question was Arizonans for Official English vs. Arizona (1997) – where the U.S. Supreme Court denied a right-wing proponent of an “English Only” initiative from appealing a court decision invalidating the ballot measure. The only reason we’re at the California Supreme Court today, is that Arizonans for Official English relied – in part – on the fact that “no Arizona law” granted the proponents standing. In an abundance of caution, the Ninth Circuit punted the issue back to the California Supreme Court – asking them if there is anything in the California State Constitution, which would grant Prop 8 proponents standing on appeal.

But there are good reasons to not grant standing to Prop 8 proponents in this appeal. As the state’s chief law enforcer, the California Attorney General has the task to defend the state’s laws – and, like all prosecutors, has the discretion not to defend laws that are clearly unconstitutional. Here, Kamala Harris has declined to appeal the Prop 8 decision at trial level – which is no surprise to anyone. In fact, she made it one of her campaign promises to not defend Prop 8 – whereas her GOP opponent, Steve Cooley, said that he would. Harris won the election, so the voters had clearly spoken.

Allowing Prop 8 supporters to substitute in as “parties” to this case on appeal, would replace the state’s interests (as normally represented by a publicly elected official) with private interests who are unaccountable to no one but themselves. As Rick Jacobs, chair of the Courage Campaign, wrote recently: allowing Prop 8 supporters standing would mean that “anyone who has money to put an initiative on the ballot in California and then sufficient funds to advertise its way to passage, whether relying on facts or fear, has special ‘standing’ before the law.”

Unfortunately, the California Supreme Court has – at least in the past – shown a strong deference to the state’s initiative process. The last time they dealt with Prop 8 was in May 2009, when the measure was challenged on state constitutional grounds. In that case, the argument for overruling Prop 8 was that it was not your regular state constitutional amendment – but instead, a revision that chipped away at equal protection under law. Therefore, it would be improper for a simple majority of the voters to pass it with few safeguards.

But that’s not how the Court saw it. In a 6-1 decision, the Court set some broad standards as to what would be a permissible “amendment” – which led me wondering under what circumstances would any ballot proposition be considered a “revision.” As the line of questioning in oral arguments went, it was clear that the Justices put a greater premium on the right of the voters to amend the Constitution – than on the right to protect the rights of minorities.

The California Supreme Court has a chance to make it right this time. By denying standing to a group of right-wing private citizens who put on the ballot a measure that violates the U.S. Constitution, they can secure the rights of loving couples to get married.