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Court says backers can defend gay marriage measure

By Lisa Leff

Associated Press

Published: Thursday, Nov. 17 2011 12:41 p.m. MST

Gay marriage supporters learn the news that backers of Proposition 8 can defend their measure against gay marriage outside the California Supreme Court in San Francisco, Thursday, Nov. 17, 2011. The sponsors of the ballot proposition can defend their initiatives from legal challenges if the governor and attorney general refuse to do so, California's highest court said Thursday. Responding to a pivotal question from a federal appeals court that is considering the constitutionality of the state's gay marriage ban, the court said the lawmaking power granted to citizens under the state constitution doesn't end once propositions have been approved or rejected by voters.

Eric Risberg, Associated Press

SAN FRANCISCO — The sponsors of ballot propositions can step in to defend their initiatives from legal challenges if the governor and attorney general refuse to do so, California's highest court said Thursday in a precedent-setting ruling that could prove pivotal to the future of the state's same-sex marriage ban and its notoriously vigorous citizens' initiative process.

Responding to a question from a federal appeals court that is considering the constitutionality of the state's voter-approved gay marriage ban, the California Supreme Court said the lawmaking power granted to citizens under the state constitution doesn't end once propositions have been approved or rejected by voters.

"We conclude that 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," the unanimous ruling written by Chief Justice Tani Cantil-Sakauye states.

In the 61-page opinion, the seven justices said denying ballot proposition backers a seat at the table would effectively grant the governor and attorney general veto power over initiatives with which they disagreed, a situation the justices said would undermine the law-making powers California gave voters in 1911.

"Neither the governor, the attorney general, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters," the decision said. "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 to assert the state's interest ..."

A three-judge panel of the 9th U.S. Circuit Court of Appeals asked the state court in January to clarify who is eligible to fight for voter-approved initiatives in court when state officials opt not to. The panel said the question was unsettled under both federal and California law, but central to its deliberations in the ongoing same-sex marriage skirmish because if the backers of the 2008 initiative known as Proposition 8 lacked legal standing, it would have to dismiss the case.

The coalition of religious and conservative groups that qualified Proposition 8 for the ballot and successfully campaigned for its passage have asked the 9th Circuit to reverse a federal trial judge's ruling in August 2010 striking down the measure as a violation of gay Californians' civil rights. Both former Gov. Arnold Schwarzenegger and Gov. Jerry Brown, in his previous role as state attorney general, took the unusual step of refusing to appeal the decision.

The appeals court panel now must decide whether to accept the court's guidance and if so, how to apply it to Proposition 8. The state court's word, while expected to carry substantial weight since it involves a state Constitutional matter, is non-binding on the federal court.

But if the 9th Circuit does accept the Supreme Court's interpretation, it would clear the way for the appeals court to analyze the substance of the appeal. The ban's supporters on Thursday cheered the likelihood of that happening now that the state court has weighed in.

"We are delighted that the Supreme Court has clearly reaffirmed our right, as the official proponents of Prop 8, to defend over seven million Californians who amended their own State Constitution to restore traditional marriage," Protect Marriage General Counsel Andy Pugno said. "This victory is an enormous boost for Proposition 8 as well as the integrity of the initiative process itself."

Lawyers for the two gay couples who successfully sued to overturn the ban in the lower court had argued that if the ban's backers did not have the right to appeal, the trial judge's decision would stand and same-sex marriages would be legal in California for the first time since Proposition 8 passed three years ago.

After the Supreme Court ruling was issued, the couples' high-powered lawyers said they still felt confident the ban ultimately would be struck down by the 9th Circuit and possibly reach the U.S. Supreme Court.

"We are very anxious to move forward on the merits," former U.S. Solicitor General Ted Olson said.

The ruling establishes a state precedent that could be used in other ballot initiative cases the attorney general or governor decline to defend. Instances are rare of state officials refusing to appeal rulings that are adverse to voter-approved laws, but they have come up in California every couple decades or so.

Civil rights groups criticized the Supreme Court's expansive view of the initiative process, predicting it would put minorities at a political disadvantage.

"Allowing the Prop 8 proponents to have special rights in court may open the floodgates to wealthy special interests to do the same," said Courage Campaign chairman Rick Jacobs, whose group champions progressive causes in California. "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."

Associated Press Writer Paul Elias and Video Journalist Haven Daley in San Francisco contributed to this report.

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