California Supreme Court says proponents can defend gay-marriage ban
By David Siders and Peter Hecht
dsiders@sacbee.com
dsiders@sacbee.com
Published: Friday, Nov. 18, 2011 - 12:00 am | Page 1A
© Copyright The Sacramento Bee. All rights reserved.
In a major lift for supporters of California's same-sex marriage ban, the state's highest court ruled Thursday that proponents of ballot initiatives can defend their measures in court when the governor and attorney general refuse to do so.
The California Supreme Court's ruling sets the stage for the continuation of a legal battle over gay marriage that is drawing national attention and is widely expected to reach the U.S. Supreme Court.
In the wake of the opinion, the federal appeals court that is considering the legality of the state's gay marriage ban is expected to rule on constitutional questions at the heart of the measure.
The ban, Proposition 8, was approved by voters in 2008 but was ruled unconstitutional by a federal judge last year. Legal arguments over the measure's constitutionality had been on hold for months as the federal appeals court awaited this ruling.
The question of legal standing became significant when Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown, now governor, declined to defend Proposition 8 in court. Had the state Supreme Court ruled against proponents of the measure, ProtectMarriage.com, the case might have stopped short on appeal.
"When the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so," the state Supreme Court said in a unanimous opinion, "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 state court's ruling doesn't bind the 9th U.S. Circuit Court of Appeals, but the appeals court solicited it and lawyers for both sides expect the opinion to stand.
In a precedent-setting ruling applying broadly to California initiatives, the court said allowing proponents to defend their measures is "essential to the integrity of the initiative process," limiting the ability of elected officials to undercut initiatives once they are passed.
"Neither the Governor, the Attorney General, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters," the court said, adding that it "would exalt form over substance to interpret California law in a matter that would permit these public officials to indirectly achieve such a result. ... "
The court cited numerous cases in which the proponents of initiatives have been allowed to defend them.
Assembly Speaker John A. Pérez, the Assembly's first openly gay speaker, said in a prepared statement that the decision "underscores what we have known all along: the road to an equal standing in the eyes of the law will be long and winding."
Proponents of Proposition 8 cheered the ruling, while supporters of gay marriage were downplaying its significance and looking ahead.
"It's a mixed bag," said Ken Pierce, president of Sacramento-based Equality Action Now, who awaited the decision with other gay-rights activists at Head Hunters restaurant. "Basically what this says is, our fight continues. Other states are getting marriage equality while California is sitting and languishing."
With legal scholars expecting the U.S. Supreme Court to eventually take up same-sex marriage, Pierce said, "This is definitely going to be talked about in college classes."
It is unclear when the California case might be decided by the federal appeals court or reach the U.S. Supreme Court on appeal. Vik Amar, a law professor at the University of California, Davis, predicted "a couple of years at the earliest."
But Ted Olson, a lawyer for gay-marriage proponents, said a decision by the appeals court could come more quickly.
"It's been way too long," he said. "We are very anxious to move forward."
Folsom lawyer Andy Pugno, Proposition 8's author, called the state Supreme Court's decision Thursday "an enormous boost for Proposition 8, as well as for the integrity of the initiative process itself."
Pacific Legal Foundation lawyer Harold Johnson said in a prepared statement that "the court rescued the initiative process from being fundamentally undermined."
The appeals court previously rejected a bid by tiny Imperial County for legal standing to defend Proposition 8, and the opinion Thursday follows two other legal defeats for the measure's supporters.
Earlier this year, a federal judge rejected the proponents' argument that U.S. District Judge Vaughn Walker's decision on Proposition 8 last year should be overturned because he didn't disclose he is gay and in a long-term relationship. More recently, a federal judge in Sacramento last month denied a bid by the supporters of Proposition 8 to conceal the identities of campaign donors.
The California Supreme Court's ruling sets the stage for the continuation of a legal battle over gay marriage that is drawing national attention and is widely expected to reach the U.S. Supreme Court.
In the wake of the opinion, the federal appeals court that is considering the legality of the state's gay marriage ban is expected to rule on constitutional questions at the heart of the measure.
The ban, Proposition 8, was approved by voters in 2008 but was ruled unconstitutional by a federal judge last year. Legal arguments over the measure's constitutionality had been on hold for months as the federal appeals court awaited this ruling.
The question of legal standing became significant when Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown, now governor, declined to defend Proposition 8 in court. Had the state Supreme Court ruled against proponents of the measure, ProtectMarriage.com, the case might have stopped short on appeal.
"When the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so," the state Supreme Court said in a unanimous opinion, "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 state court's ruling doesn't bind the 9th U.S. Circuit Court of Appeals, but the appeals court solicited it and lawyers for both sides expect the opinion to stand.
In a precedent-setting ruling applying broadly to California initiatives, the court said allowing proponents to defend their measures is "essential to the integrity of the initiative process," limiting the ability of elected officials to undercut initiatives once they are passed.
"Neither the Governor, the Attorney General, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters," the court said, adding that it "would exalt form over substance to interpret California law in a matter that would permit these public officials to indirectly achieve such a result. ... "
The court cited numerous cases in which the proponents of initiatives have been allowed to defend them.
Assembly Speaker John A. Pérez, the Assembly's first openly gay speaker, said in a prepared statement that the decision "underscores what we have known all along: the road to an equal standing in the eyes of the law will be long and winding."
Proponents of Proposition 8 cheered the ruling, while supporters of gay marriage were downplaying its significance and looking ahead.
"It's a mixed bag," said Ken Pierce, president of Sacramento-based Equality Action Now, who awaited the decision with other gay-rights activists at Head Hunters restaurant. "Basically what this says is, our fight continues. Other states are getting marriage equality while California is sitting and languishing."
With legal scholars expecting the U.S. Supreme Court to eventually take up same-sex marriage, Pierce said, "This is definitely going to be talked about in college classes."
It is unclear when the California case might be decided by the federal appeals court or reach the U.S. Supreme Court on appeal. Vik Amar, a law professor at the University of California, Davis, predicted "a couple of years at the earliest."
But Ted Olson, a lawyer for gay-marriage proponents, said a decision by the appeals court could come more quickly.
"It's been way too long," he said. "We are very anxious to move forward."
Folsom lawyer Andy Pugno, Proposition 8's author, called the state Supreme Court's decision Thursday "an enormous boost for Proposition 8, as well as for the integrity of the initiative process itself."
Pacific Legal Foundation lawyer Harold Johnson said in a prepared statement that "the court rescued the initiative process from being fundamentally undermined."
The appeals court previously rejected a bid by tiny Imperial County for legal standing to defend Proposition 8, and the opinion Thursday follows two other legal defeats for the measure's supporters.
Earlier this year, a federal judge rejected the proponents' argument that U.S. District Judge Vaughn Walker's decision on Proposition 8 last year should be overturned because he didn't disclose he is gay and in a long-term relationship. More recently, a federal judge in Sacramento last month denied a bid by the supporters of Proposition 8 to conceal the identities of campaign donors.
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