Ruling due on Prop. 8
on Nov 16, 2011 at 4:40 pm
The California Supreme Court will issue a major ruling Thursday on the right of backers of the state’s ban on same-marriage — “Proposition 8” — to defend that ballot measure in court. The decision could have a significant bearing on whether a constitutional case goes forward in federal court, or ends abruptly. In a brief announcement on Wednesday, the state court said it would issue its decision at 10 a.m. West Coast time (1 p.m. Eastern) in the case of Perry, et al., v. Brown, et al. (state court docket S189476).
The state court will be providing an answer to a question under California state law on the right of proponents of ballot measures that receive voter approval to defend the change made in state law when state officials choose not to do so. The state judges were asked on Jan. 4 by a federal court, the Ninth Circuit Court, to answer this 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 Circuit Court sought legal advice on that point because it has a bearing on whether the Proposition 8 backers have a right under federal constitutional law to present a defense in the place of state officials, who normally do defend state laws that are challenged. State officials in California, however, have repeatedly declined to defend Proposition 8, which changed the state constitution to forbid same-sex couples to get married — overturning a state Supreme Court ruling allowing such marriages.
The state court held a hearing on Sept. 6 on how to answer the referred question, and at that time gave strong indications that it probably would allow ballot measure proponents to stand in for state officials in court. Of course, it will be making a ruling that will be decisive only under California law. The question of “standing” under the federal Constitution’s Article III is separate from state law, but the Circuit Court obviously felt that it had to know what the Proposition 8 backers’ rights were under California law before it could determine whether to allow them to be in federal court. “Standing” is a jurisdictional issue; if no one in a case has that legal position, a court cannot decide the case before it.
If the Proposition 8 defenders do not have “standing” under Article III, there will be no one eligible to speak for that measure in the Circuit Court, since state officials have opted out of a defense, and the appeal now pending there would be dismissed for lack of jurisdiction.
The measure’s backers are seeking to appeal a ruling in August 2010 by now-retired U.S. District Judge Vaughn R. Walker of San Francisco, striking down Proposition 8 as a violation of the equal treatment guarantees of the federal Constitution.
Although both sides in the historic lawsuit over the gay marriage ban have expected their dispute ultimately to reach the Supreme Court, it now seems quite unlikely that the case will move fast enough in federal court from here on to reach the Justices in time for a decision during the current Term. A case must be ready for the Justices to consider by no later than the end of January in order for it to be decided in the current Term, which is likely to end late next June. The Circuit Court is considering the Proposition 8 case on an expedited basis, but it is doubtful that it could act quickly enough, and that preliminary filings in the Supreme Court could be made soon enough, for the case to be ready within the next two and a half months.