BREAKING: CA Supreme Court rules Prop 8 proponents do have standing to appeal
By Jacob Combs
This morning, the CA Supreme Court ruled that the proponents of Prop 8 do have standing under state law to appeal the decision in Perry v. Brown:
…In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.
For background on how we came to this point, what today’s opinion means and where we go from here, Prop 8 was declared unconstitutional by a California district court in August 2010. Both the duly elected governor and attorney general at the time (Arnold Schwarzenegger and Jerry Brown, respectively) as well as the governor and attorney general elected in the 2010 elections (Jerry Brown and Kamala Harris, respectively) have declined to represent the state in the case, believing Prop 8 to be unconstitutional. So the proponents of Prop 8 (ProtectMarriage.com et al, who put the measure on the ballot and worked to pass it in the first place) stepped forward to do so.
The case was appealed to the 9th Circuit, which not only heard arguments on whether Prop 8 is constitutional or not, but whether the proponents — unelected, unaccountable ProtectMarriage.com et al — even have standing to defend Prop 8 in the first place. The 9th Circuit decided to ask the California Supreme Court whether or not proponents of ballot initiatives have standing under California law to represent the entire state when the state’s elected officials refuse to do so. Today, the Court responded to that question. The CA Supreme Court’s decision is not binding on the 9th Circuit: it’s really more of an advisory opinion. However, it is a very influential opinion that the 9th Circuit will take very seriously.
Why is this all important? Because there are essentially two bites at the apple to take down Prop 8: constitutionality and standing. Whether the courts find Prop 8 to be constitutional is critically important for obvious reasons. But if the 9th Circuit rules that the proponents of Prop 8 do not have standing and we win on appeal, Prop 8 will end. Beyond that, it has critical implications for the ballot initiative process in California and who represents the state.
As for next steps, many legal observers believe the 9th Circuit is likely to adopt the CA Supreme Court’s opinion and say Prop 8′s proponents do have standing to appeal. That’s not for certain, however, since the proponents could have standing under California law but not in federal court (i.e., a federal appeals court). It’s uncertain when the 9th Circuit will issue its ruling, though many legal observers believe it will be sometime in the next few months, and it may even hold another hearing for additional arguments.
The full ruling can be found here. Check back throughout the day for updates and analysis.
Update 8: Some more notes from the AFER press call:
Olson and Boies expressed hope that there would be no need for further hearings at the 9th Circuit, since both sides made detailed arguments at last year’s hearing and nothing has changed regarding the facts of the case. Furthermore, they stressed that both the district court and the 9th Circuit have agreed several times to expedite the case in the past, and predicted that it would do so again moving forward.
One reporter asked whether AFER’s team could drop the standing issue and just ask the court to consider the case on the merits. Both Olson and Boies made it very clear that every court has to determine whether a specific case is in its jurisdiction, and that therefore the issue of standing is one that is brought up by the court itself, not the litigants. Parties can’t waive this discussion—if the court asks them to argue about standing, they must. They also predicted that the if the case ended up before the US Supreme Court, they believe that court would ask them to address the issue of standing just like the 9th Circuit did.
Update 7: I was on a press call with AFER, which is sponsoring the case. Some notes:
Ted Olson, David Boies and Chad Griffin spoke on the call. They hope the 9th Circuit will proceed without further argument, although in some cases, they want one more briefing. They do not want to predict a day or month, however. Further, as we’ve explained here at P8TT, either side can seek review of the case to the 9th Circuit or the US Supreme Court. If petitions are filed in the Supreme Court after the panel decision, they’d be filed this spring. No prediction on when the US Supreme Court would take the case — it could be in June, or in October.
Update 6: NCLR’s Executive Director Kate Kendell also weighs in:
“We disagree profoundly with the California Supreme Court’s holding that a handful of unelected initiative sponsors have the power to represent the interests of the entire public and to override the decisions of the state’s elected executive officers. Nonetheless, we are relieved that the case is once again moving forward and the Ninth Circuit will now address whether the initiative proponents can continue this appeal and, if so, whether Prop 8 is constitutional. We hope the Ninth Circuit will issue its decision soon and hasten the day when this damaging law is off the books. Every day that goes by, same-sex couples in California are being denied not only the basic right to marry, but the right to be treated with equal dignity and respect. Same-sex couples in California have lived under the shadow of this unfair law for far too long.”
Update 5: Statement from Lambda Legal’s Legal Director, Jon Davidson:
While today’s ruling from the California Supreme Court is disappointing, the good news is that the Perry case is now back in federal court, where we expect a quick victory. It’s important to keep in mind, though, that today’s ruling addresses only a procedural legal question. The key issue in this case is whether the U.S. Constitution permits a state electorate to treat one group of people unequally to everyone else by depriving them of what the state’s high court has held to be a fundamental right. A federal court has already ruled that the federal Constitution prohibits the voters from doing that and that Prop. 8 therefore is unconstitutional. We look forward to seeing that decision upheld so that same-sex couples in California may once again enjoy the freedom to marry.
In addition, today’s ruling does not settle the federal law question of whether Prop 8 proponents have standing in federal court. It remains up to the U.S. Court of Appeals for the Ninth Circuit to decide whether or not the U.S. Constitution allows initiative proponents to defend a challenge to the measure the proponents supported when elected state officials don’t. Regardless of today’s decision, we at Lambda Legal believe that the U.S. Supreme Court has made clear that initiative proponents don’t have that right.
In the end, the proponents of Prop. 8 are just people with an opinion. That does not make them entitled to stand in for the government when they don’t agree with its decisions. We believe the U.S. Court of Appeals for the Ninth Circuit should rule that Prop. 8′s proponents lack standing under federal law and, if the judges who originally heard the appeal rule otherwise, that the full Ninth Circuit or the U.S. Supreme Court should rule that initiative proponents are not entitled to take over the government’s role.
Even if the federal courts find that the proponents have the right to appeal, we continue to believe that Prop. 8 is unconstitutional and that the appellate courts will agree. As Judge Walker ruled, there is not even a legitimate government interest in denying same-sex couples access to the title and status of marriage when the state provides them all of the rights, benefits, and duties afforded different-sex couples through marriage. Prop. 8′s only purpose was to send the message that the same-sex couples don’t deserve to be seen as equal to different-sex couples and that message is one the federal Constitution prohibits. That is especially so when, as here, the state supreme court has ruled that denial of access to marriage violated the state’s guarantee of equal protection. What Prop. 8 did was amend the California Constitution’s equal protection clause to create a gay exception and provide that all people in the state have equal rights except for lesbians, gay men, and bisexuals. That too is something the U.S. Constitution does not allow.
We therefore remain very optimistic that, one way or another, Prop. 8 will eventually be overturned.
Update 4: Attorney Adam Bonin over at DailyKos adds his take.
Update 3: More from Shannon on timing:
It is likely the Ninth Circuit will issue a ruling fairly quickly, since they agreed to hear the case on an expedited basis. But even if they do, it likely will not be soon enough to permit the Supreme Court to hear the case during its current term. It is also possible that the Ninth Circuit may ask for supplemental briefing, which would delay things further.
Update 2: Shannon Minter, Legal Director at National Center for Lesbian Rights who led the legal team to win In re Marriage Cases at the California Supreme Court in 2008, sent his reaction in over e-mail:
This is a terrible decision in terms of its impact on California law. The court has given initiative proponents unprecedented and virtually unlimited power, and the people of California will be living with the dangerous consequences of that decision for years to come. That said, the Court’s ruling means that the Ninth Circuit will almost certainly find that the proponents of Prop 8 have standing to pursue the appeal, which means that the Ninth Circuit will now decide whether to affirm or reverse Judge Walker’s decision finding that Prop 8 is unconstitutional. If the Ninth Circuit agrees with Judge Walker, the Supreme Court is very likely to take the case. In the bigger picture, this is good news for same-sex couples in California. Prop 8 is blatantly unconstitutional for many reasons—not only because it deprives same-sex couples of a basic right, but because it was enacted for the sole purpose of targeting a particular group in order to deny them equal protection of the laws.
Update 1: Statement from Courage Campaign
California Supreme Court Rules Prop 8 Proponents Have Legal Standing to Appeal Judge Walker’s Decision Regarding Prop 8
Statement from Rick Jacobs, Chair and Founder of the Courage Campaign
“While we respect the recommendations that the California Supreme Court made to the 9th Circuit Court of Appeals– that they grant standing to the proponents of the so-called ProtectMarriage.com — it is only a recommendation,” said Rick Jacobs, chair and founder of the 750,000 member Courage Campaign. “Allowing the Prop 8 proponents to have special rights in Court may open the floodgates to wealthy special interests to do the same. The judges of the 9th 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. Regardless, we are confident that justice and love will prevail.”
Throughout the Perry v Schwarzenegger (now Perry v Brown) Prop 8 trial, Jacobs live-blogged daily from the courthouse and documented all of the latest motions and court rulings. Prop 8 Trial Tracker (
www.Prop8TrialTracker.com), a project of the Courage Campaign Institute, has logged over 4 million page views, 110,000 comments and is the #1 Google search result for “Prop 8 Trial.” The highly-popular blog has followed every aspect of the Prop 8 trial, in addition to its NOM Tour Tracker that followed the National Organization for Marriage on three tours across the country