Ruling: Gay marriage foes can fight for Prop. 8 in federal court

California Supreme Court ruled Thursday that backers of Prop. 8 – which banned gay marriage in the state – can defend the measure in federal court, in lieu of state officials who declined to do so. The ruling means a major federal lawsuit proceeds.

Eric Risberg/AP
Gay marriage supporters learn the news that backers can defend their measure against gay marriage outside the California Supreme Court in San Francisco, Thursday.

The California Supreme Court on Thursday opened the way for the continuation of a major legal battle in federal appeals court over whether the US Constitution affords a right to same-sex couples to marry.

In a unanimous ruling, the state high court said the proponents of Proposition 8 – the ballot initiative that amended the California constitution to restrict marriage to heterosexual couples – are authorized under California law to defend the measure because state officials are refusing to do so.

The issue arises in an ongoing challenge to Proposition 8 designed to overturn the measure and establish a federal constitutional right to same-sex marriage.

In 2010, a federal judge in San Francisco ruled that Proposition 8 violated both the due process and equal protection clauses of the US Constitution.

Proposition 8 proponents urged the governor, the attorney general, and other state officials to appeal the ruling. But California officials – who are primarily responsible for defending the state’s constitution and its laws – refused to file an appeal.

In their absence, Proposition 8 proponents filed their own appeal. It asked a three-judge panel of the Ninth US Circuit Court of Appeals to overturn the federal judge’s ruling invalidating Proposition 8.

Same-sex marriage supporters sought to short-circuit the appeal by arguing that Proposition 8 proponents lacked the necessary legal standing to defend the law. Only California officials were authorized to defend the law in court, they argued.

After a hearing, the federal appeals court asked the California Supreme Court to clarify whether California law permits the proponents of a ballot measure to defend their successful initiative if state officials refuse to do so.

On Thursday, the state high court answered the question in the affirmative.

“California law authorizes the official proponents, under such circumstances, to appear in the proceeding to assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure,” Chief Justice Tani Cantil-Sakauye wrote in a 61-page decision.

In a case where state officials refuse to defend the validity of a constitutional amendment approved by voters, she added, “it would clearly constitute an abuse of discretion for a court to deny the official proponents of an initiative the opportunity to participate as formal parties in the proceeding.”

The ruling shifts the spotlight back to the Ninth Circuit. Should that court rule that Proposition 8 proponents have legal standing in the case, it will then address the central issue – whether the US Constitution is offended by California’s ban on same-sex marriage.

The pending dispute is one of the most significant and closely watched appeals court cases in the country.

Rick Jacobs, founder of the gay rights group Courage Campaign, warned that participation by Proposition 8 organizers in the litigation would set a dangerous precedent. It might “open the floodgates to wealthy special interests to do the same” in future ballot initiatives, he said.

“The judges of the Ninth Circuit must determine if people who had enough money to buy a ballot measure that calls for people to vote on each other’s rights should have special rights in federal court,” Mr. Jacobs said in a statement.

“While we respect the recommendation that the California Supreme Court made to the Ninth Circuit Court of Appeals, it is only a recommendation,” he said.

Proposition 8 sponsors,, applauded the California Supreme Court’s decision. “This victory is an enormous boost for Proposition 8 as well as the integrity of the initiative process itself,” the group said in a statement.

The statement called the decision “a huge disaster for the homosexual marriage extremists.” It added: “The court totally rejected their demands that their lawsuit to invalidate Proposition 8 should win by default with no defense. Their entire strategy relied on finding a biased judge and keeping the voters completely unrepresented.”

The group said: “Today that all crumbled before their eyes.”

The California Supreme Court decision marked the first time the state high court ruled on the issue of whether proponents of a successful ballot initiative may defend their measure in court.

The court said that once a ballot measure has been approved by voters effectively amending the state constitution, state officials have no authority to veto it. But if ballot initiative proponents lack the authority to defend the measure in a subsequent court challenge, state officials could effectively veto it by simply refusing to argue for its retention.

“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,” Justice Cantil-Sakauye wrote.

The case was Perry v. Brown (S189476). 

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