September 07, 2011, Melanie Nathan
San Francisco – Yesterday, the California Supreme Court heard arguments on an important question of California law that has arisen in Perry v. Brown, the ongoing federal challenge to Proposition 8, a 2008 ballot measure that stripped the fundamental right to marry from same-sex couples in California.
The California Attorney General and the California Governor agreed with the federal district court Judge Vaughn R. Walker’s decision that indeed same-sex couples have the inherent right to marry; that Prop 8 is unconstitutional and decided not to appeal. The Prop 8 proponents, however, want to defend the case in their stead.
The Ninth Circuit Court of Appeals referred to the California Supreme Court asking whether state law gives the sponsors of Prop 8 special authority to appeal the holding that Prop 8 is unconstitutional. After a decision is handed down from yesterday, the case will go back to the Ninth Circuit for a decision on whether the Prop 8 sponsors can pursue their federal court appeal of Judge Walker’s decision. So to be clear, the question of standing does not end with the decision of yesterday’s bench, which should be handed down within 90 days.
The California Supreme Court may hold that initiative sponsors do not have any special power under state law to step in and override the decisions of the California Attorney General and Governor. If that happens, the Ninth Circuit will likely rule that the Prop 8 supporters cannot appeal the ruling. That would mean that the Ninth Circuit would dismiss the appeal, Judge Walker’s ruling would stand, and same-sex couples would once again be able to marry in California.
Alternatively, if the California Supreme Court rules that California law gives initiative sponsors the extraordinary power to step into the shoes of elected officials for purposes of defending Prop 8, the Ninth Circuit will have to decide whether that is enough to give them standing to appeal Judge Walker’s decision. If so, then the Ninth Circuit will permit the appeal to proceed and will either affirm or reverse Judge Walker’s decision invalidating Prop 8.
I may have been one of those who succumbed to the idea that the Justices’ line of questioning served as an indicator of their decision, yet to be made; however overnight , after giving it some thought, I realized that the questions did not cover some of the pertinent aspects that could render the group with no standing.
I am with NCLR Executive Director Kate Kendell, who states: “It would be an unthinkable blow to California’s democratic system of government if the handful of individuals who sponsored Prop 8 could make decisions for the entire state. Today’s arguments raised critical questions affecting the future of all groups who may be targeted by unconstitutional ballot initiatives, and the California Supreme Court’s decision will determine whether our state can be held hostage by special interests with no accountability to the public. We are hopeful that the Court will affirm that a handful of private citizens representing only their own narrow interests cannot usurp the role of the duly elected officials of the state of California.”
However from the questioning it seemed that if the Justices rule that California law gives the proponents standing under California law, the implication would be that the authority of the proponents would then derive from the fact that the initiative had been voted for by a majority of California “voters” – as opposed to the Constitutional empowerment of the Attorney General and Governor. This would be extremely dangerous as there is no legislation that empowers the proponents. This would then be a case where the bench legislates. However if the Justices sent it back to the Federal Court, without an affirming decision, simply stating that there is no California law to empower the proponents, then they would avoid having to make a decision with such mind blowing implications.
By Melanie Nathan
Photo: By Kristina Lapinski.