At a hearing in San Francisco today, California Supreme Court justices seemed inclined to recommend allowing the sponsors of Proposition 8 to appeal a federal court ruling striking down the initiative.
“An initiative measure is an indication of the voters’ will,” stated Chief Justice Tani Cantil-Sakauye, adding that “the purpose and integrity of the initiative process” are at stake in the question of who can appeal.
“This issue transcends Proposition 8,” she said.
Proposition 8, enacted by California voters in November 2008 as a state constitutional amendment, bans same-sex marriage in California.
The initiative’s sponsors and their committee, Protect Marriage, are seeking to appeal a decision in which U.S. District Judge Vaughn Walker of San Francisco ruled last year that the measure violated the federal constitutional rights of same-sex couples.
Walker ruled in a civil rights lawsuit filed by two couples.
But the appeal has been stalled over a procedural argument on whether the initiative sponsors have the standing, or legal right, to appeal when state officers refuse to do so.
Both Gov. Jerry Brown and Attorney General Kamala Harris, who are the official defendants in the case, have declined to defend Proposition 8 on appeal because they believe it is unconstitutional.
In January, a 9th Circuit panel said a 1997 U.S. Supreme Court ruling in an Arizona case appears to state that initiative proponents don’t have standing under federal law to appeal in such circumstances.
The appeals court then asked the California Supreme Court to issue an advisory opinion on whether state law provides such a right, in view of California’s strong tradition of voter initiatives.
After hearing an hour of arguments in their State Building courtroom, the California high court’s seven justices took the case under submission. They have 90 days to issue a written ruling.
After that advisory ruling is issued, the case will go back to the 9th Circuit for a final decision on the standing issue. If the appeals court grants the initiative sponsors standing, it will then decide their appeal.
If they are denied standing, Walker’s ruling overturning Proposition 8 would be left in place. But a further round of federal hearings might be needed to determine whether the ruling applies statewide or only in Alameda and Los Angeles counties, the home counties of the lesbian and gay couples who challenged the measure.
Walker’s ruling has been put on hold during the appeal.
At today’s hearing, Justice Ming Chin said, “When you have one side not represented, it seems to me that the right to enact an initiative is illusory.”
Charles Cooper, a lawyer for the sponsors, quoted a 1978 decision in which the state high court said, “It is our solemn duty to jealously guard the initiative process.”
Cooper argued, “The proponents have a right to propose a valid constitutional amendment. They therefore have the right to defend its validity.”
In opposition, Theodore Olson, a lawyer for the couples, contended that while the state Constitution gives citizens the right to propose and approve initiatives, it gives only the governor and attorney general the authority to decide whether to defend them.
“There is nothing in the California Constitution or statutes that gives private citizens the right to take over the attorney general’s responsibilities,” he argued.
But Justice Joyce Kennard said, “It appears to me that to agree with you would be to nullify the great power of the initiative that the people have reserved to themselves.”
Justice Goodwin Liu, the court’s newest member, said the Proposition 8 sponsors “have put in a substantial amount more time and effort on the initiative and they controlled the ballot arguments on it.”
“Just commonsensically, isn’t it the case that they are the one who are most clearly invested in the success of the initiative?” Liu asked.
Julia Cheever, Bay City News