February 16, 2011 | by Lou Chibbaro Jr.
Calif. Supreme Court to hear Prop 8 case

The California Supreme Court voted unanimously on Wednesday to decide the question of whether supporters of Proposition 8, the ballot measure that repealed California’s same-sex marriage law, have legal standing to appeal a federal court decision last year invalidating the ballot measure.

In a statement released late Wednesday, a court spokesperson said the state Supreme Court would expedite the process for receiving legal briefs and planned to schedule oral arguments for the case in September.

Its decision, expected later in the year, would determine whether same-sex marriage opponents can proceed with their appeal of a U.S. District Court decision last year invalidating Proposition 8 on grounds that it violates the U.S. Constitution by denying same-sex couples the right to marry.

The legal standing issue surfaced in 2009 when former California Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown, now the governor, refused to defend Prop 8 against a lawsuit filed by two same-sex couples.

The private citizens who organized Prop 8 were allowed to intervene on its behalf during the district court proceedings, including a civil trial. But gay rights attorneys challenging the ballot measure on appeal argued that only the state could defend the measure because it was a state law.

On Jan. 4, the Ninth Circuit U.S. Court of Appeals sidestepped a ruling on whether the district court was correct in declaring Prop 8 unconstitutional and sent the lawsuit filed by the gay couples to the state’s Supreme Court for an advisory ruling on the standing question.

If the California Supreme Court rules Prop 8 supporters lack legal standing, the district court ruling would take effect, allowing same-sex couples to marry as they had during the short period of time before voters approved Prop 8 in the November 2008 election.

However, most legal observers believe the Prop 8 backers would respond immediately by asking the U.S. Supreme Court to issue a stay to prevent same-sex marriages from resuming until the U.S. Supreme Court decides whether it would take the case on its merits.

Most legal observers believe the case will ultimately wind up in the U.S. Supreme Court.

Meanwhile, if the California Supreme Court rules in favor of granting legal standing to Prop 8 backers, the case would go back to the Ninth Circuit appeals court, which would then hear the case on the merits of whether Prop 8 violates the U.S. Constitution, as gay rights attorneys and the same-sex couples who brought the lawsuit claim it does.

In its statement released today, the California Supreme Court gave a legal explanation of the question it says it will answer after deliberating over the case:

“Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the state’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.”

The court’s statement says Prop 8 supporters’ attorneys must file their opening brief for the case by March 14, and attorneys representing the same-sex couples seeking to invalidate Prop 8 must file their response by April 4.

“The California Supreme Court shortened the normal briefing schedule to expedite consideration and resolution of the issues in the matter and to accommodate oral argument as early as September 2011,” the statement says.

Jennifer Pizer, an attorney for Lambda Legal, an LGBT legal advocacy group that’s monitoring the Prop 8 case, called on the California Supreme Court to confirm that Prop 8 backers don’t have legal standing to appeal the case.

Prop 8 supporters “are not law enforcers and have the same limited rights as everyone else to litigate only when their own rights are at stake, not merely to assert their opinions about others’ rights,” Pizer said in a statement.

“Initiative proponents also cannot step into the shoes of the attorney general, the governor or other state officials,” she said. “The reason for this is basic: the governor and attorney general are elected by the people to represent all the people, not just one point of view on one issue, out of countless, competing concerns.”

A spokesperson for Prop 8 supporters, including the National Organization for Marriage, which campaigns against same-sex marriage rights, could not be immediately reached for comment.

Chad Griffin, president of the American Foundation for Equal Rights, which is financing the same-sex couples’ lawsuit seeking to overturn Prop 8, said his group is hopeful that they will prevail and same-sex marriage will be declared a constitutional right.

“AFER is challenging Prop 8 not only for our plaintiffs, two loving couples who want to marry, and not only for the thousands of loving couples like them, but for the simple reason that our laws should treat everyone equally,” he said.

Lou Chibbaro Jr. has reported on the LGBT civil rights movement and the LGBT community for more than 30 years, beginning as a freelance writer and later as a staff reporter and currently as Senior News Reporter for the Washington Blade. He has chronicled LGBT-related developments as they have touched on a wide range of social, religious, and governmental institutions, including the White House, Congress, the U.S. Supreme Court, the military, local and national law enforcement agencies and the Catholic Church. Chibbaro has reported on LGBT issues and LGBT participation in local and national elections since 1976. He has covered the AIDS epidemic since it first surfaced in the early 1980s. Follow Lou

4 Comments
  • A huge Thank You to Ted Olson, David Boies, Chad Griffin and AFER, for defending this case on behalf of opressed Gay Americans, and to Jennifer Pizer for her Clear and Precise statement to the Calif. Supreme Court.

    Please help AFER to continue this worthy fight by making a contribution now:

    http://www.afer.org/

  • I hope CA GLBT leaders agree to get a Prop 8 repeal on the ballot. I believe we can get it overturned next year and be the first state to have voters approve SSM, and what a great victory that would be! If it gets to the US Supreme Court I think I’m realistic in believing the Court would not have what it takes to invalidate the 30 odd state laws that prohibit SSM and we would lose many years. On the other hand, we may just be able to pull off getting Prop 8 overturned next year!

  • I have mixed opinions about the California Supreme Court’s decision to decide if the rotten Proposition 8 supporters have standing to move the case forward. It might be better strategy for the Federal Appeals Court to rule these SOBs don’t have standing which will restore same-sex marriage in California. I know some people are hoping for a larger ruling that could be used to overturn bans on same-sex marriage in other states, but this comes with the risk that the decision wouldn’t be overturned by the US Supreme Court, which is currently dominated by conservative Republicans, (5-4). I also don’t like the idea of the California Supreme Court taking 7-8 months to decide if the rotten Pro-Hate crowd has standing. This shouldn’t take more than ten minutes to figure out, why do they need 7-8 months??? I say, hurry up and overturn Prop 8 and restore same-sex marriage in California without the long wait.

  • I agree with Tim, in one sense because if the 9th Circuit does rule on the issue, it will leave an even deeper and wider record for the question when it gets to the Supreme Court. I believe, after watching the oral argument that led to the certification of the question of standing, that the 9th circuit panel would rule Prop 8 unconstitutional. Best, yes, to repeal it. It was passed because the forces of good were on the slo-mo in realizing the amount of money coming in from Utah and the Catholics and the effects of the smarmy twisted arguments of the proponents. It can be repealed with a solid well financed effort.

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