Prop 8 Defense Gets Green Light
Special Report - November 18, 2011
Proponents of California’s marriage amendment, Proposition 8, have the right to continue to defend the amendment in federal court against an ongoing legal challenge, even though state officials normally charged with that responsibility refuse to do so, according to a long-awaited ruling issued yesterday by the State Supreme Court. In its decision, the California Supreme Court ruled unanimously that the “the official proponents of the initiative are authorized under California law to appear and assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so.”
As we have previously reported, the California marriage amendment known as Proposition 8 was adopted by a majority of voters in November 2008, and same-sex “marriage” proponents in the state are seeking to have the measure overturned. Proposition 8 is being defended in the lawsuit, Perry v. Brown, by attorneys with ProtectMarriage.com, which is “the banner organization for the official proponents and campaign committee” of the amendment. The case is currently before the U.S. Court of Appeals for the 9th Circuit. In August 2010, a three-judge panel of the 9th Circuit stayed a controversial ruling by U.S. District Judge Vaughn Walker that struck down Proposition 8 as unconstitutional and would have made California the sixth state in the nation to legalize same-sex “marriage.” The appeals court stayed Judge Walker’s ruling until a full panel of the 9th Circuit hears an appeal in the case.
The decision issued this week by the State Supreme Court was in response to a request by the 9th Circuit, which had asked the court in January 2011 to answer the following question: “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 California Supreme Court answered yes to that question in its November 17 decision, noting that, “California courts have routinely permitted the official proponents of an initiative to intervene or appear as real parties in interest to defend a challenged voter-approved initiative measure in order ‘to guard the people’s right to exercise initiative power,’ or, in other words, to enable such proponents to assert the people’s, and hence the state’s, interest in defending the validity of the initiative measure.” The court went on to explain that “Allowing official proponents to assert the state’s interest in the validity of the initiative measure in such litigation (along with any public officials who may also be defending the measure) (1) 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 (2) 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.” The court concluded that, “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. It would exalt form over substance to interpret California law in a manner that would permit these public officials to indirectly achieve such a result by denying the official initiative proponents the authority to step in to assert the state’s interest.”
According to the Alliance Defense Fund (ADF), which is helping to defend Proposition 8 as part of the ProtectMarriage.com legal team, the case will now return to the 9th Circuit Court of Appeals, which will consider the Supreme Court’s opinion and issue its own decision on the legal standing of Proposition 8 proponents, and ultimately on the constitutionality of Proposition 8. Regardless of how the 9th Circuit rules in the lawsuit, both sides believe that the Perry v. Brown will eventually reach the U.S. Supreme Court.
“The court was clearly right to conclude that the California marriage amendment should not go undefended just because state officials have refused to defend it,” said ADF Senior Counsel Brian Raum in a press release. “Because the people of California have a right to be defended, Proposition 8’s official proponents will be allowed to continue defending the marriage amendment. Otherwise, state officials would have succeeded in indirectly invalidating a measure that they had no power to strike down directly.”
9th Circuit Punts Prop 8 - January 6, 2011
NCFPC Joins Prop 8 Brief - September 24, 2010.
9th Circuit Stays Prop 8 Ruling - August 16, 2010.
Judge Won't Stay Prop 8 Ruling - August 13, 2010
Judge Rules Prop 8 Unconstitutional - August 5, 2010
The Issue That Will Not Go Away - FNC - Spring 2010
California Court Upholds Marriage Amendment - May 26, 2009
California Court To Rule On Proposition 8 - November 24, 2008
California Amendment Not Retroactive - August 8, 2008
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