A unanimous California Supreme Court told a federal appeals court Nov. 17 that California law "authorizes" the proponents of Proposition 8 to defend the voter-approved ban on same-sex marriages 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, which has an appeal from Yes on 8 officials before it—means the three-judge panel of the federal appeals court will now rule on the merits of that appeal.
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 make such decisions decided not to defend the ban beyond federal district court, which had ruled Prop 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 standing issue was punted to the California Supreme Court by a three-judge panel of the 9th Circuit U.S. Court of Appeals. That panel heard arguments concerning standing and concerning the constitutionality of Prop 8 itself.
The California court said the proponents of Prop 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, in light of the nature and purpose of the initiative process embodied in … the California Constitution … and the unique role of initiative proponents in the constitutional initiative process as recognized by numerous provisions of the Elections Code, 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 Prop 8, argued that there was "nothing" in California law that would authorize any group to press an appeal that elected officials had decided to drop. Charles Cooper, the well-known conservative attorney leading the pro-Prop 8 defense, argued that the official supporters of ballot initiatives have "never" been barred from defending a measure. He also 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 appealed to the 9th Circuit after U.S. District Court Chief Judge Vaughn Walker ruled in August 2010 that Prop 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 4-3 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—Justices Marvin Baxter, Ming Chin and Carol Corrigan—dissented. Baxter's dissent, which Chin joined, said 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 Prop 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.
�2011 by Keen News Service. All rights reserved.
