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Victory for Prop. 8 backers

Giving the sponsors of California’s ban on same-sex marriage a significant legal lift, the California Supreme Court ruled on Thursday that they have a right under state law to go to court to defend the measure that the state’s voters have approved.  Allowing them to take the place of state officials who refuse to provide a defense, the court said, was “essential to the integrity” of the California process that allows the voters to pass laws or constitutional amendments through the ballot box.   The state court’s unanimous 72-page ruling is here.

The state court thus answered “yes” to a question sent to it last January by the Ninth Circuit Court as a prelude to a decision by that federal court on whether to go ahead and rule on an appeal the proponents of “Proposition 8” have filed.  Now, it will be up to the three-judge federal panel to decide whether, under the U.S. Constitution’s Article III, the measure’s backers have a federal right to challenge a California federal judge’s 2010 decision striking down Proposition 8.

No one but the three judges on the Circuit panel can say with any certainty how much influence the California court’s ruling will have on the Article III issue, but it may contribute a compelling argument as to why the backers of the measure have a real stake in the ultimate issue of whether their proposal survives the constitutional challenge mounted against it — so far successfully — by two same-sex couples.   That would seem to bear upon the Article III “standing” question of whether they will suffer a legal “injury” if Proposition 8 is nullified.   “Injury” is the hardest test to meet of the requirements for “standing” under the Constitution.

Moreover, in sending the issue to the state court for a review of the proponents’ legal rights under state law, the Ninth Circuit indicated that what the state court decided would have significance in the federal case.    In its opinion Thursday, the state court suggested that it very well could have decisive significance.

It seems possible that the Circuit Court will now ask both sides in the federal case of Perry v. Brown (Circuit docket 10-16696) to offer their views on the impact of the California court ruling on the Article III issue.   The panel had previously ordered briefs from both sides on the “standing” issue, however, and it has already held a hearing on the merits of the challenge to Proposition 8, though, so conceivably it could simply move on now toward a final decision.  Either way, it does not now appear that the Circuit Court could complete its review, and issue whatever decision it reached, in time for the issue to be considered during the current Term of the Supreme Court in Washington.

The state court ruling was written by the state’s new Chief Justice, Tani Cantil-Sakauye, and was supported in full by the court’s six Associate Justices.   One of those six, Justice Joyce L. Kennard, filed a concurring opinion that recounted the history of the recent legal combat in California over same-sex marriage and argued strongly in favor of a need for the defense of Proposition 8 in an open court proceeding.

Chief Justice Cantil-Sakauye stressed at the opening of the opinion that the state court was not ruling on the constitutionality of Proposition 8, and her opinion spoke in general terms about the initiative process in California, and the role that court review has played in the history of that process.   The state court’s own prior ruling in May 2008 striking down state statutes that did not permit same-sex marriage was overturned explicitly the following November by the voters’ enactment of Proposition 8, which amended the state constitution to say that “only marriage between a man and a woman is valid or recognized in California.”

That is the provision that U.S. District Judge Vaughn R. Walker of San Francisco struck down in August of last year, finding that it violated the federal Constitution’s protection of equal legal treatment and its guarantee of due process.   When the Proposition 8 backers filed an appeal of Judge Walker’s ruling in the Ninth Circuit, the challengers to Proposition 8 contested their “standing” to appeal.   It was that dispute that led the Circuit panel to “certify” to the state court a question of whether, under state law, the official sponsors of a ballot measure could defend it in court in place of state officials who had taken a pass.

Californians place a very high value on their right to be lawmakers in their own right, through the “direct democracy” process of sponsoring ballot initiatives.  The state court seemed to reflect that positive sentiment in its opinion.   It noted, though, that, while it had issued several rulings in past cases in which ballot measure sponsors had taken part, it had never fully explained the basis for allowing such participation.   It also noted that participation in the past had not involved putting the proponents to any test of the interest they were asserting, nor had it depended upon the presence or absence of government officials in defending the ballot proposals.

Settling the unresolved issue, it said: “Because the initiative process is specifically intended to enable the people to amend the state Constitution or to enact statutes when current government officials have declined to adopt (and often have publicly opposed) the measure in question, the voters who have successfully adopted an initiative measure may reasonably harbor a legitimate concern that the public officials who ordinarily defend a challenged state law in court may not, in the case of an initiative measure, always undertake such a defense with vigor or with the objectives and interests of those voters paramount in mind.”

When voters are allowed to step into the state’s shoes to defined such a measure, the opinion added, they are asserting “the people’s, and hence the state’s, interest in defending the validity of the initiative measure.”  Letting the official sponsors into court as defenders, the opinion went on, “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.”

Moreover, the Chief Justice wrote, allowing the sponsors into court “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 result, the opinion said, is “to enhance both the fairness of the judicial process and the appearance of fairness of that process.”

It would “clearly constitute an abuse of discretion,” the state court said, “for a court to deny the official proponents of an initiative the opportunity to participate as formal parties in the proceeding, either as interveners or as real parties in interest, in order to assert the people’s and hence the state’s interest in the validity of the measure and to appeal a judgment invalidating the measure.”   (Of course, those remarks about abusing judicial discretion only applies to a state court in California, since the state court has no authority to determine what might be an abuse if a federal court, for Article III reasons, excluded a defender from a pending case over an initiative’s validity.)

The same-sex couples who have pursued the constitutional challenge to Proposition 8 have argued, through their lawyers, that the sponsors of a ballot measure have no more personal interest in defending an adopted measure than anyone else in the state who may have voted for the proposal, and thus the sponsors cannot claim that they would be harmed if the measure were nullified.   The state court, however, answered that claim — as a matter of state law — by saying that the sponsors, because of their “unique relationship to the initiative measure” under state constitutional and statutory law, “are the most obvious and logical persons to defend the validity of the measure “on behalf of the voters” who had approved the ballot proposition.

Under state law, the court concluded, neither the governor nor the state attorney general, and no other state official, “has the authority to veto or invalidate an initiative measure that has been approved by the voters.”  So, it said, they may not do so indirectly “by denying the official initiative proponents the authority to step in to assert the state’s interest in the validity of the measure or to appeal a lower court judgment invalidating the measure when those public officials decline to assert that interest or to appeal an adverse judgment.”

Chief Justice Cantil-Sakauye’s opinion suggested that, since the right of Proposition 8 backers to pursue their appeal in federal court was an issue of federal law for a federal court to decide, there might be some confusion why the Ninth Circuit would ask a state court for its views on the state law rights of the proponents.   The Chief Justice, while saying the state court was not offering any opinion on what the federal outcome would be, offered reasons to suggest that federal courts — including the Supreme Court — do look to state law some of the time in deciding who has a right to be in federal court under Article III.

In fact, that portion of her opinion appeared to counter an argument that the same-sex couples have used in trying to keep the Proposition 8 backers out of the federal case now on appeal.   The couples have noted that the Supreme Court’s 1997 decision in Arizonans for Official English v. Arizona expressed “grave doubts” that an initiative’s proponents could stand in for state officials in defending the measure.  However, the Chief Justice said, those doubts were based upon the Justices’ concern that the proponents did not have a right under state law to be in court, and that is what fueled the “grave doubts” about their federal role.

The state court opinion went on to say that nothing in that 1997 decision suggested that, if state law did allow a measure’s backers to step into the state’s role in defending it, they would not have “standing” under federal law to do so.   In fact, the opinion said that the Ninth Circuit, in sending the referred question to the state court, had already tipped its hand, and had said that, if the proponents had standing under state law, they would have standing under federal law to pursue their appeal.  No party disagrees with that, the opinion said.

It seems doubtful, however, that the same-sex couples will concede without further argument that there is “standing” for the proponents in the federal case merely on the basis of what the California court has said is the law in California.   In any event, the comments the Ninth Circuit made in asking for state law advice from the state court did not amount to a conclusive ruling on the “standing” issue, and that issue remains to be addressed formally.

The two sides are in dispute about what would happen to Judge Walker’s opinion nullifying Proposition 8 if the Ninth Circuit were to bar the appeal for lack of “standing” for the proponents.  The same-sex couples argue that would simply make the Walker decision final; the proponents say that it would mean that the Walker decision had to be vacated, and the case ended without a ruling on Proposition 8’s validity.



Recommended Citation: Lyle Denniston, Victory for Prop. 8 backers, SCOTUSblog (Nov. 17, 2011, 1:26 PM),