The California Supreme Court agreed Wednesday to decide whether the official sponsors of Proposition 8 have the right to defend the same-sex marriage ban before a federal appeals court.
Its decision will be due within 90 days of that hearing.
The court unanimously accepted a request made by the 9th U.S. Circuit Court of Appeals last month for an opinion on whether state law allows sponsors of an initiative to defend it in court.
The question of the sponsors’ standing, or authority, to appeal is a key issue in their bid to challenge a decision in which U.S. District Judge Vaughn Walker last year struck down the 2008 voter initiative banning same-sex marriage in California.
The California officials who were named as defendants, including former Gov. Arnold Schwarzenegger and former Attorney General and now Gov. Jerry Brown, declined to appeal, and the Proposition 8 sponsors and their committee want to step in to pursue an appeal.
But the federal appeals court said in last month’s request that U.S. law doesn’t appear to allow initiative proponents to appeal rulings when state officials refuse to do so.
The question of whether state, as opposed to federal, law allows such appeals is therefore critical to whether the 9th Circuit can consider the constitutionality of Proposition 8, the court said.
“We cannot consider this important constitutional question unless the appellants before us have standing to raise it,” said a three-judge appeal panel.
The case is a civil rights lawsuit filed in 2009 by two couples who want to marry: Kris Perry and Sandra Stier of Berkeley and Jeff Zarillo and Paul Katami of Burbank. Walker ruled in August that Proposition 8 violates the U.S. Constitution’s guarantees of equal treatment and due process.
Today’s state high court action means there will be a legal detour of at least seven months before the federal appeals court could review Walker’s decision.
In the meantime, there will be no gay and lesbian weddings in California because the trial judge’s ruling has been stayed by the 9th Circuit during the appeal.
Sponsors’ attorney Andrew Pugno said, “Protect Marriage is pleased that the California Supreme Court will decide whether the official proponents of a voter initiative have the legal right to defend it when government officials abandon their sworn duty to do so.
“We fully supported the 9th Circuit’s directing this critical question to the California Supreme Court in hopes that it will put to rest any ambiguity of our right to defend the votes of over 7 million Californians who reaffirmed marriage as only between a man and a woman.”
Chad Griffin, president of a foundation that supported the couple’s lawsuit, said, “We look forward to assisting the California Supreme Court reach an answer to the question before them as soon as possible so that the 9th Circuit can affirm the district court’s ruling and end the state-sanctioned discrimination of Prop. 8.”
The San Francisco-based National Center for Lesbian Rights said the state’s elected governor and attorney general should have the authority to decide whether to defend an initiative.
“The California Supreme Court should act quickly to confirm that California’s elected officials, not private groups or interested individuals, represent the state’s interests in court,” center director Kate Kendell said.
The state Supreme Court set a shortened schedule for briefs to be filed between March 14 and May 9.
If the court eventually rules that the sponsors have standing, the case will go back to the 9th Circuit for a decision on whether Walker correctly concluded the measure is unconstitutional. The appeals court’s decision can be appealed to the U.S. Supreme Court.
But if the California court says the Proposition 8 sponsors don’t have standing under state law to appeal, the legal situation would be murky.
In briefs filed with the 9th Circuit last fall, the plaintiffs’ lawyers said that if the proponents lack standing, the appeals court should dismiss the case and allow Walker’s decision to be “the law of the land” in California.
But at a hearing before the 9th Circuit panel in December, the attorneys conceded that even if the appeal is dismissed, further legal action might be needed to enforce Walker’s decision statewide outside of Alameda and Los Angeles counties, where the two couples live.
The plaintiffs’ lawyers have also argued that the Proposition 8 sponsors should not have standing because they are not personally injured by gay and lesbian marriages.
The proponents, meanwhile, have claimed that if their appeal is dismissed, Walker’s ruling should apply only to the two couples who filed the lawsuit, since he never certified the case as a class action.
The proponents could also appeal the federal standing question to the U.S. Supreme Court. In saying last month that U.S. law does not appear to give initiative proponents standing, the 9th Circuit cited a 1997 Supreme Court ruling in an Arizona case in which the court said it had “grave doubts” that proponents would have standing.
But the federal high court did not issue a definitive ruling on the issue.
Julia Cheever, Bay City News
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