Prop. 8: Who speaks for the state?

By Lyle Denniston
on Apr 6, 2011 at 10:12 am

Two California same-sex couples, who successfully challenged California’s ban on their chance to marry, cautioned the state Supreme Court against transferring some of state officials’ power to the backers of Proposition 8, foreseeing a serious disruption of government if that is allowed to happen.  The argument came Monday as the couples filed their brief in the state court on an issue passed to the state tribunal by the Ninth Circuit Court.  San Francisco officials made much the same argument in the city-county brief.

The Ninth Circuit indicated in January that it would put off a ruling on the constitutionality of Proposition 8 until after it gets some legal advice from the state Supreme Court on whether the backers of the ballot measure have any authority under state law to defend the ban in court since state officials have refused to do so.  The proponents filed their brief on that issue in March.

In reply Monday, the challengers argued that the measure’s supporters were seeking an “unprecedented” transfer of state authority to private individuals and groups who have never been elected, and have no ongoing power about enforcement or defense of a ballot measure once it has gained approval in an election. 

The state constitution, the new brief contended, gives the governor and the attorney general the authority to enforce the laws, and the attorney general the sole power to defend them.  “It would subvert the express constitutional authority of the governor and attorney general,” the couples contended, “to direct the defense of state laws.” 

If the proponents are found to have a right to stand in for the state, the couples asserted, the attorney general’s authority as the state’s chief law officer “would be subject to a veto by ballot initiative proponents whenever the constitutionality of an initiative were at issue.”

Backers of a measure who are disappointed because state officials will not defend it in court, the brief said, have a remedy: get the voters to oust those officials at the next election. 

The couples also contended that denying the backers a right to stand in for the state in court would not nullify the people’s right to propose and enact initiatives.  In fact, the brief said, the governor and attorney general have continued to enforce the gay marriage ban while the constitutional case proceeds in court.

The brief sought to play down the role of a ballot measure’s backers, saying the rights they are given under the state constitution and laws are focused primarily on what they are entitled to do before a ballot measure ultimately wins approval at the polls.

The Proposition 8 supporters are to file their reply brief by April 18.  After that, no action on the case is expected until the state court holds oral argument, sometime in early September.

Even if the state court were to find that state law does allow the measure’s backers to stand in for the state, that does not necessarily mean that they will be allowed to do so by the federal courts.  The issue of whether they have “standing” to pursue the defense of the law is a matter of federal constitutional law, under Article III, and the Ninth Circuit would have to find standing for the case to proceed.

If the Circuit Court were to rule that no group has standing to defend Proposition 8, that would end the appeal without a ruling, since that court would not have jurisdiction to decide it.  At that point, the question would be what happens to the August decision by a federal judge in San Francisco striking down the measure as a violation of the U.S. Constitution.  The two sides disagree on what would happen.

Ultimately, though, the fight over Proposition 8 is still expected to reach the U.S. Supreme Court, in some form, perhaps within the next year.