November 17, 2011 at 1:22 pm EST | by Chris Johnson
Calif. high court: Prop 8 supporters can continue case

The California Supreme Court issued a unanimous opinion on Thursday that proponents of the state’s same-sex marriage ban have standing to defend the measure against litigation in court.

In the decision, the court determined that anti-gay groups that were responsible for putting Proposition 8 before California voters in 2008 can defend the measure in the case of Perry v. Brown.

“[W]hen the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so … 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,” the court wrote.

Each of the seven justices penned their name to the court’s opinion. Associate Justice Joyce Kennard wrote a concurring opinion to “highlight the historical and legal events” that led to the decision.

Groups responsible for Prop 8, including, are seeking the ability to defend the measure in court because state officials have elected not to participate in litigation against the measure. California Gov. Jerry Brown (D) and Attorney General Kamala Harris (D) have decided not to defend the law — just as former Gov. Arnold Schwarzenegger (R) and Brown in his previous capacity as attorney general chose not to defend it.

The case is pending before a three-judge panel with the U.S. Ninth Circuit Court of Appeals, which in January asked the California Supreme Court to consider whether Prop 8’s proponents had standing to defend the amendment in court.

The California Supreme Court ruling is a recommendation; standing remains a question of federal law. The state court is simply providing advice to the Ninth Circuit on the legal rights of ballot initiative proponents under state law.

After an indeterminate time passes, the Ninth Circuit will make its own decision on whether Prop 8 proponents have standing to defend the measure as it considers the case. Observers say the Ninth Circuit will likely concur that Prop 8 backers can continue the case, then proceed to consider the case on its merits. From there, the case could be appealed to the Supreme Court.

The case arrived at the Ninth Circuit on appeal after now retired U.S. District Judge Vaughn Walker ruled against Prop 8 last year on the basis that the measure violated the Due Process and Equal Protection Clauses of the U.S. Constitution because it singles out gays for unfair treatment under the law.

The lawsuit was filed by the American Federation for Equal Rights, which selected Ted Olson, a U.S. solicitor general under former President George W. Bush, and David Boies, a private attorney and chairman of the law firm Boies, Schiller & Flexner, to lead the case.

In a statement, Olson said he’s “pleased” the California high court has responded to Ninth Circuit’s question and expects swift action from the appellate court.

“Important questions of federal law remain pending before the Ninth Circuit, including, most significantly, the constitutionality of Proposition 8,” Olson said. “We now anticipate a prompt and thorough resolution of those questions by the federal appeals court, which, we expect, will affirm the trial court’s comprehensive and compelling decision that Proposition 8 violates the Due Process and Equal Protection Clauses. We hope that the long wait for justice by gay and lesbian Californians will soon be over.”

Chad Griffin, AFER’s board president, expressed similar confidence and said the lawsuit “is now back on the fast track.”

“We are back in federal court and on the cusp of victory for loving, committed gay and lesbian couples whose constitutional rights are being violated every minute of every day,” Griffin said. “The anti-marriage proponents have no case. We are confident that the higher courts will uphold the District Court’s opinion that Proposition 8 is unconstitutional.”

LGBT advocates have had mixed views on whether granting standing to proponents of Prop 8 would be beneficial for same-sex couples, although most had said they didn’t want the anti-gay groups to be allowed to defend the law in court.

If the Ninth Circuit finds that Prop 8 supporters don’t have standing, the case is dismissed for lack of jurisdiction and California’s marriage ban is lifted. However, some have said granting these groups standing and enabling the case to continue could take it to the U.S. Supreme Court, which could then decide on whether U.S. Constitution provides marriage rights to gay couples throughout the country.

Jon Davidson, legal director for Lambda Legal, called the ruling “disappointing,” but said he anticipates “a quick victory” in the Ninth Circuit for same-sex couples.

“The ruling addresses only a procedural legal question,” Davidson said. “The key question underlying this case is whether the U.S. Constitution permits a state electorate to treat one group of people unequally to everyone else by depriving them of what the state’s high court has held to be a fundamental right. A federal court has already ruled that it may not. We look forward to seeing that decision upheld so that same-sex couples in California may once again enjoy the freedom to marry.”

Shannon Minter, legal director for the National Center for Lesbian Rights, called the ruling a “terrible decision” in terms of its impact on California law.

“The court has given initiative proponents unprecedented and virtually unlimited power, and the people of California will be living with the dangerous consequences of that decision for years to come,” Minter said.

While LGBT groups found the court decision unpalatable, the anti-gay National Organization for Marriage praised the Supreme Court for determining that proponents of Prop 8 should have standing.

Brian Brown, NOM’s president, said “it was shameful” state officials would “abdicate their constitutional responsibility” and elect not to defend the marriage ban in court.

“Although today’s ruling from the California Supreme Court confirms that the proponents of Prop 8 have the right to defend their initiative when the state officials refuse to fulfill their sworn duty, it is gratifying to know that the over 7 million Californians who supported the initiative will have a vigorous defense of their decision in our federal courts,” Brown said.

Brown expressed confidence that the U.S. Supreme Court would overturn against any decision against the marriage ban made by the Ninth Circuit.

“Once this case gets out of San Francisco and reaches the U.S. Supreme Court, we fully expect to be victorious,” Brown said.


Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

  • In my very personal opinion, the California Supreme Court is RIGHT in allowing the Proposition 8 Proponents to have standing to defend the State Law in Court. I am all for GAY MARRIAGE, which I believe to be a fundamental human right everybody on this earth rightfully deserves and possesses. But the issue here is the American System for DEMOCRACY, and in a TRUE DEMOCRACY, there ought to be a channel, a right, a privilege, a procedure to defend a State Law overturned by the Court. To go out and defend a Court-overturned law is a HUGE and DIFFICULT task that a group of, say, concerned citizens nornally cannot assume! Therefore the Governor is the one that is vested the duty to do the job by the State Constitution (Or by the Federal Constitution if this is a Federal Law.) However, if the Governor and the Attorney General choose to waive the right to defend the Law out of Conscience reasons, then the Citizen should be able to do it! There should be no blockage to the Justice System. When there are two sides with FULL STANDING each over a case before the Court, then the Court will hear the case and make a Judgement. If we believe in GAY MARRIAGE, why bother about the standing of our concerned fellow citizens who might believe otherwise?

    Thought I would like to share a few thoughts. Thank you for time reading.

  • If we gays were actually trying to force the different religions to marry us, then they would have a definitive and valid argument. But this is not so. In the New York marriage equality law, there is a religion clause that prevents this from actually happening. Maryland has a similar exemption as well. So if religion is threatened, how is this so? What is really going on is that religion is overextending itself to control government affairs. I thought that we lived in a democracy and NOT a theocracy.

  • The supporters of Poop. 8 have more than Judge Walker’s decision to fight against. They also have two U.S. Supreme Court precedents on the civil and constitutional rights of gay and lesbian Americans to contend with.

    They have to convince the ninth Circuit Court — and ultimately, the Supreme Court itself — that the high court’s decision in Romer V. Evans (1996) that states cannot single out gay and lesbian Americans for exclusion from constitutional and civil rights and privileges enjoyed by all other Americans does not apply in Prop. 8 (Highly unlikely, given that the justices struck down a voter-approved Colorado constitutional amendment aimed at denying gay and lesbian residents in that state equal constitutional and civil rights).

    They must also convince the Ninth Circuit that the Supreme Court’s decision in Lawrence v. Texas (2003) that fully decriminalized same-gender sexual relationships — and effectively removed all de jure obstacles to gay and lesbian couples marrying legally — does not apply either (Again, highly unlikely).

    Then there is the high court’s landmark 1967 ruling, Loving v. Virginia, in which the justices unanimously struck down laws that barred interracial couples from marrying.

    In all three cases, the justices ruled that the right of all Americans to equal protection of the laws under the Fourteenth Amendment cannot be taken away by government or by a fickle populace against an entire class of law-abiding citizens, no matter how unpopular that class is.

    As an openly bisexual African-American man who is a second-generation beneficiary of the Loving v. Virginia ruling (My wife is white — and yes, she not only knows that I’m bi, but we are in an open marriage), I cannot see how the justices can come to any conclusion other than that Prop. 8 (and, by extension, the federal Defense of Marriage Act and all 31 other state laws that bar gay and lesbian couples from marrying) violates the Equal Protection Clause of the Fourteenth Amendment.

  • I think that is a good ruling from the CA supreme court. Just imagine if the people of CA had passed an initiative requiring anti-bullying laws in the schools. And imagine that anti-gay groups brought suit to reject that vote, while a republican governor and AG both declined to defend the initiative passed by the people. It would be fair and just to allow proponents of the anti-bullying law be allowed to defend the peoples’ law. Everyone gets their day in court… even the idiots. :)

  • Gay Marriage will have a good chance of winning but again this should not be at the expense of our Democratic justice system breaking down. People often criticize that gays want to be a “special rights group”. If gay marriage comes at the expense of a legal constitutional procedure being hindered (i.e. No standing for the Citizen to defend a publicly approved measure in Court) then the Democratic System will be at stake (i.e. by creating an exception for gay rights to advance without regards to proper democratic procedures).

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