Tani Cantil-Sakauye

In what amounts to a bump in the road for opponents of Proposition 8, a unanimous California Supreme Court told a federal appeals court Thursday, November 17, that California law “authorizes” the proponents of the initiative to defend it in federal court even though state elected officials decided not to.

The ruling, which will almost certainly be accepted by the 9th Circuit U.S. Court of Appeals panel, means the three-judge panel of will now rule on the constitutionality of Proposition 8.

The question before the California Supreme Court was whether Yes on 8, the proponents of the state constitutional ban on same-sex marriage ban passed by California voters in November 2008, has a legal right to defend that ban in a federal appeals court. California officials elected to defend state laws decided not to defend the ban further, after a federal district court ruled Proposition 8 to be a violation of the federal constitution.

Proponents of the ban said they were trying to protect the power of the people to amend their constitution; opponents argued they were trying to protect the power of the people to elect and empower state officers to perform their constitutional duties to make such decisions.

“The ruling addresses only a procedural legal question,” said Jon Davidson, legal director for Lambda Legal. “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.”

The standing issue was punted to the California Supreme Court by the 9^th Circuit panel after it heard arguments concerning both standing and the constitutionality of Proposition 8.

In its ruling on the standing issue, the California Supreme Court said proponents of Proposition 8 are the  “most obvious and logical persons to assert the state’s interest in the initiative’s validity on behalf of the voters who enacted the measure….”

“[W]e conclude that… it would clearly constitute an abuse of discretion for a court to deny the official proponents of an initiative the opportunity to participate as formal parties in the proceeding, either as interveners or as real parties in interest, in order to assert the people’s and hence the state’s interest in the validity of the measure and to appeal a judgment invalidating the measure,” wrote Chief Justice Tani Gorre Cantil-Sakauye.

The 61-page opinion said the court’s finding “assures voters who supported the measure and enacted it into law that any residual hostility or indifference of current public officials to the substance of the initiative measure will not prevent a full and robust defense of the measure to be mounted in court on the people’s behalf… [and] ensures a court faced with the responsibility of reviewing and resolving a legal challenge to an initiative measure that it is aware of and addresses the full range of legal arguments that reasonably may be proffered in the measure’s defense.”

Ted Olson, the famed conservative attorney who has been leading the legal team to overturn Proposition 8, said “the standing issue is still in the case” and could be brought up to the U.S. Supreme Court when the case is ultimately on appeal there.

But he said the 9th Circuit panel indicated it would accept the California court’s determination and he now expects “the 9th Circuit will proceed promptly to a decision on the merits” without further briefing or argument, though an additional argument could be scheduled.

Olson, arguing before the California Supreme Court in September, had argued that there was “nothing” in California law that would authorize any group to press an appeal that elected officials had decided to drop.

In finding that California law authorizes Yes on 8 to represent the people on appeal, the court noted that “Article II, section 1 of the California Constitution proclaims: ‘All political power is inherent in the people.’ Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.”

Charles Cooper, the well-known conservative attorney leading the pro-Proposition 8 defense, had argued that the official supporters of ballot initiatives in California have “never” been barred from defending a measure. And he argued that the state’s attorney general does not have the authority to refuse to represent the state’s interest in the validity of initiatives that voters pass.

Cooper’s team took the Proposition 8 case to the 9th Circuit after U.S. District Court Chief Judge Vaughn Walker ruled in August 2010 that Proposition 8 violates the federal constitution’s guarantee of equal protection of the law.

The same-sex marriage controversy started before the California Supreme Court in May 2008, when a 4 to 3 majority ruled that the state constitution prohibited the state from establishing a “statutory scheme” in which both opposite sex and same-sex couples are legally recognized relationships, but only opposite sex couples are designated as married. Three of the seven justices at the time dissented, saying such a “profound change” needed to be made by either the people or their elected representatives, not the courts.

Now that the 9th Circuit has heard from the California Supreme Court, it is expected to soon issue its opinion concerning both standing and the constitutionality of Proposition 8. Regardless of the outcome, both issues will almost certainly be appealed to the full 9th Circuit court and/or the U.S. Supreme Court.

Williams Institute legal scholar Jenny Pizer said she expects the 9th Circuit panel might rule before the end of the year, but that the case will likely be heard by the full 9th Circuit before going to the U.S. Supreme Court. Pizer and National Center for Lesbian Rights attorney Shannon Minter agreed the case is not likely to move quickly enough to put the case before the U.S. Supreme Court during its current 2011-12 session.

Minter was very disappointed with the standing ruling from the California Supreme Court.

“This is a terrible decision in terms of its impact on California law,” said Minter. “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.”

Both Minter and others, however, expressed relief that the case can now move forward.

“In the bigger picture,” said Minter, “this is good news for same-sex couples in California. Prop 8 is blatantly unconstitutional for many reasons—not only because it deprives same-sex couples of a basic right, but because it was enacted for the sole purpose of targeting a particular group in order to deny them equal protection of the laws.”

Chad Griffin, head of the American Foundation for Equal Rights that has spearheaded the litigation against Proposition 8, said the “good news” with the California court ruling is that the case, Perry v. Brown, is now back before the federal court now and can proceed.

“We’re thrilled,” said Griffin, “to be back on that fast track and headed quickly to a place where these two [plaintiff] couples can have the freedom to marry and ultimately around the country.”