Beginning their effort in the California Supreme Court to salvage their legal defense of the state’s ban on same-sex marriage, the proponents of Proposition 8 on Monday urged the state court to let them stand in for state officials who refuse to defend the ban.  The measure’s backers filed an opening brief, found here, on issues that could settle their rights under state law to protect the ban.  (Note that the brief, with appendices, totals 170 pages.)

A federal judge in San Francisco struck down Proposition 8 last August, but that decision is on hold while the Ninth Circuit Court reviews it.  In January, however, the Circuit Court indicated it had doubts about whether California state law would permit Proposition 8’s initial sponsors to defend the law in place of state officials, who have either taken a pass or argued that the ban is unconstitutional.  So, the Circuit Court asked the state Supreme Court for some legal advice on the point.

The proponents contended that the very integrity of the voter initiative process in California — a prized part of the state’s lawmaking process — depends upon having someone available to mount a defense of a measure against constitutional attack if state officials don’t do so.  Citing a string of California state court rulings, the brief asserted that their interest in protecting Proposition 8 is already clearly established.

Although the Circuit Court, in sending the legal question to the state judges for an answer, had said that the answer could be crucial to whether the federal case proceeds, it is not clear that the answer will in fact settle finally the federal court’s authority to rule.   Even if the state court, for example, were to conclude that Proposition 8’s sponsors can take up the defense, the Circuit Court still would have to be satisfied that those Californians face an injury to themselves, if the ban is nullified, before the case can go forward.

The Proposition 8 brief sought to anticipate that question of legal injury by contending that, with state officials on the sidelines, the measure’s backers have become “agents of the people” of the state, acting “to preserve the People’s intiaitive power….”

If no one else can take the place of state officials to defend a ballot measure from constitutional attack, the new filing contended, the state’s elected officials will have succeeded in nullifying the measure even though they have no such veto power under the state constitution or state laws.

But, in addition to their role as agents of the people of the state,  the brief argued, the Proposition 8 backers themselves have a special role all of their own — not shared by other Californians who may support that ban — because they were the ones who put the proposal together, fought for it, and got it approved by the state’s voters. 

Under California law, the brief said, those who are the formal proponents of a ballot initiative have “unique rights and responsibilities vested in them.”  They started the legislative process that wound up at the polls in 2008, and they won that contest, and, with it, the right to defend it after it came under attack, according to the new document.

The state Supreme Court is considering the state law question on an expedited schedule.  The same-sex couples who successfully challenged Propositon 8 in federal court are due to file their brief  in the state court on April 4, and the measure’s backers are to file a reply by April 18.

That court, however, will not hold an oral argument on the case until September; it recently refused to move up that date.   How soon after that it will decide the issue is unclear, but it appears that the federal case will not move forward until after the state court has answered the Circuit Court’s question.

Meanwhile, the same-sex couples have asked the Circuit Court to lift the stay it imposed on the decision striking down the ban, so that gay and lesbian couples throughout the state could now get married.  The measure’s proponents have opposed that request.

Posted in Cases in the Pipeline

Recommended Citation: Lyle Denniston, Prop. 8 backers defend role, SCOTUSblog (Mar. 14, 2011, 9:18 PM),