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.
SAN FRANCISCO — The California Supreme Court ruled Thursday that supporters of Prop 8 have the right to defend the ban on same-sex marriage in court. The decision sends the case back to the federal appeals court to resolve the broader questions at the heart of the constitutional showdown.
Voters approved Proposition 8 in 2008, but California Gov. Jerry Brown and the state attorney general have declined to defend it in court. Without anyone to defend it, both sides believed same-sex marriage activists would win their case and overturn Prop 8 by default.
Prop 8 supporters cheered the decision.
William Duncan, director of the Marriage Law Foundation, told the Deseret News it is important to understand that Thursday's decision is not about the constitutionality of gay marriage. Rather it asserts government officials do not have the right to effectively veto laws they don't like.
"The Supreme Court of California has made what seems to be a simple decision...," he said, "that it is not fair to voters not to allow them to defend a law they approved."
The 2008 ballot initiative banned same-sex marriage in California, but was overturned in 2010 as unconstitutional by U.S. District Judge Vaughn Walker. Walker imposed a moratorium on same-sex marriages in the state while Prop 8 supporters appealed his ruling.
A panel of judges in the 9th Circuit Court requested a clarification from the state supreme court about whether proponents of a ballot have the legal standing to defend their proposition in court. Thursday's decision established they do and clears the way for the 9th Circuit Court of Appeals, and potentially the U.S. Supreme Court, to rule on the constitutionality of same-sex marriage.
In her opinion for the court, Chief Justice Tani Cantil-Sakauye said, "It is essential to the integrity of the initiative process … that there be someone to assert the state's interest in an initiative's validity on behalf of the people when the public officials who normally assert that interest decline to do so,"
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.
"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 told the Associated Press. "This victory is an enormous boost for Proposition 8 as well as the integrity of the initiative process itself."
But lawyers for the same-sex couples said they're ready for the 9th Circuit to rule on the legality of California's gay marriage ban.
"This frees up the 9th Circuit to go ahead and decide the constitutional issues on the merits," said Theodore Olson, former U.S. solicitor general during the George W. Bush administration, in an interview with the San Jose Mercury News. "We're anxious to get to a decision on the merits that Proposition 8 is unconstitutional."
comments on this story
The 9th Circuit must still resolve the legal question of whether Proposition 8 sponsors have standing under federal court rules to press the appeal, but legal experts have generally predicted the court would allow the case to proceed if gay marriage opponents secured a favorable ruling from the California Supreme Court, particularly because the federal judges themselves said they would follow the state Supreme Court's guidance. In fact, the lawyers for same-sex couples conceded Thursday the issue is probably dead in the 9th Circuit.