CA Supreme Court Should Not Give Unprecedented Powers to Prop 8 Supporters

Posted on 07 September 2011

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By Shannon Minter, Esq., and Christopher Stoll, Esq.
National Center for Lesbian Rights

Yesterday morning, the California Supreme Court heard arguments on an important issue of California law that may affect whether the sponsors of Proposition 8 can continue to pursue their federal court appeal in Perry v. Brown, the case challenging Prop 8 (read background on the case).

The federal Ninth Circuit Court of Appeals is hearing the appeal from federal District Judge Vaughn R. Walker’s August 2010 ruling striking down Prop 8. This January, the Ninth Circuit asked the California Supreme Court to answer a specific question of California law: Do the sponsors of an initiative like Prop 8 have special authority under California law to defend ballot initiatives in an appeal even when the state Attorney General or other responsible state officials have decided not to?

Under the California Constitution, when state laws are challenged as unconstitutional, elected state officials—usually the Attorney General or the Governor—are responsible for making all decisions relating to the legal defense of the law. That includes the decision whether or not to file an appeal when a court issues a decision striking down the law.

In the Perry case, both Attorney General Kamala Harris and Governor Jerry Brown concluded that they agree that Proposition 8 is unconstitutional and that appealing Judge Walker’s ruling is not in the best interests of the state. Because neither of these elected officials appealed the decision, the sponsors of Prop 8 cannot appeal Judge Walker’s decision unless they can show that they are personally harmed by permitting same-sex couples to marry or that state law gives them some special authority simply because they are initiative sponsors.

The U.S. Supreme Court has expressed “grave doubts” that the sponsors of a ballot initiative have standing to appeal a federal court decision invalidating the initiative—unless state law gives them some special right to do so. That is why the Ninth Circuit asked the California Supreme Court to weigh in on the case and decide whether California law grants special power to the proponents of Prop 8 to appeal the trial court ruling that Prop 8 is unconstitutional.

As NCLR, Lambda Legal, and Equality California argued in a friend-of-the court brief filed with the California Supreme Court, there is nothing in California law that gives initiative sponsors any special interest in an initiative once it is passed or that purports to deputize them to represent the interests of the state.  To the contrary, the California Constitution and California law give the Attorney General and the Governor—not private initiative sponsors—the responsibility to decide whether and how to appeal a federal court decision striking down a state law. Both conservative and progressive elected officials have occasionally exercised that discretion in the past by choosing not to expend state resources to defend invalidated measures.

It is never possible to predict what a court will do based on the questions asked at oral argument, but the tenor of some of the justices’ questions today was concerning. With some notable exceptions, many of the California Supreme Court’s questions today did not address the specific legal issues before it or delve into the relevant provisions of the California Constitution. Instead, some of the justices seemed to be discussing the initiative process in general terms without considering that the state constitution specifically delegates the power to defend state laws to its elected officers.

The initiative process is already frequently misused to target vulnerable groups, due in part to the Court’s past reluctance to enforce any meaningful limits on the process, even when those limits are mandated by the California Constitution. It would compound that mistake to give initiative proponents an unprecedented new power to step outside of their proper legislative role, usurping the power that the California Constitution gives only to elected state officials in the executive branch.

If the California Supreme Court does expand the rights of initiative proponents in this unprecedented way, the Ninth Circuit will still need to consider whether the Prop 8 proponents meet the requirements for appealing in federal court. The Ninth Circuit could still decide that the Prop 8 proponents cannot appeal Judge Walker’s ruling because they have no personal stake in the outcome of the case: Unlike same-sex couples who are hurt every day by being forbidden to marry, the sponsors of Prop 8 would not suffer any harm from a decision that eliminates discrimination against gay couples. But regardless of how the Ninth Circuit rules on whether the proponents have standing in federal court, a decision from the California Supreme Court giving such power to initiative proponents under state law would be a terrible blow to equality—not just for LGBT people, but for any group targeted by ballot initiatives, which disproportionately seek to limit the rights of the most vulnerable people in our society. The argument today did not inspire confidence that our state supreme court justices sufficiently appreciate those stakes.


Shannon Minter is the Legal Director for the National Center for Lesbian Rights; and Christopher Stoll is a Senior Staff Attorney for the National Center for Lesbian Rights.

Thank you so much for writing this insightful piece. I just wish the media would pick up on the very important issues at stake rather than focusing on such two-demensional interpretations of what the court is deciding here.

I am a tax paying American citizen, and yet in the country that I love, the "Home of the Free and the Brave," we are still standing in the past, denying the basic rights of marriage to our tax-paying lesbian and gay citizens.

I was never a huge "marriage" person, but when I started doing the research for the coming out and relationship books I have written for gay women, I realized that LGBT people are being denied over 1,000 rights that married, straight people have. That fact made me realize how important the basic right of legal marriage is for sure. If you'd like to read the list of the rights that unmarried lesbian and gay couples don't have, please go here:

Just think, a MURDERER on DEATH ROW can get married, but a committed LGBT couple who has been together for years CAN NOT? Drunk people in Las Vegas who just met in a bar can get married, BUT LGBT People CAN NOT? Young adults over 18 who barely know each other can run off and get married, but same-sex couples who have been in committed relationships for years can not?

My female partner and I have been together over 18 years, and we have paid plenty or taxes during both of our lives, and yet we don't have the same rights as convicted murderers, serial rapists and child molesters? Does that seem right?

These are the questions that come to me when I hear homophobic comments concerning LGBT people and our rights to be treated like every other tax paying citizen of the United States. And to top it off, much of this discrimination is based on personal religious beliefs, here in a country that was founded by the idea of separation of church and state...

If the word "marriage" is such a big deal, then why not call ALL LEGAL licensed partnerships between 2 consenting adults "Civil Unions", and all ceremonies that are performed in a church between 2 consenting adults can still be called Marriages. Legal "marriage" and the religious ceremony are two different things anyway. Why not just call them two different names for everyone?

Each of us has to be strong to be who we truly are. In the last 50 years we've come so far concerning the rights of all US citizens, and yet we have so much further to go. Will we be brave, or will we stand in the shadows of denial that sexual orientation is not a choice but how many of our citizens are born?

It's all up to those of us who believe that no matter what our race, religion, sex or sexual orientations may be, we are all created equal, and that we should be treated that way, especially in a country that has always been known for its global humanitarianism.

Tracey Stevens
Co-Author of:
“How To Be A Happy Lesbian: A Coming Out Guide”
“Coming Out Advice for Lesbian and Bisexual Women"
“Relationship Advice for Lesbian and Bisexual Women"

Thanks for the insightful and articulate comment Tracey, I hope a lot of the readers here will take the time to check it out.

This whole "separate but equal" argument, just as it was applied to blacks in the past, is not just bigoted, but deeply ignorant of the law and constitution.

In fact, the more I listen to the rabid right hail and "celebrate" the founding fathers you realize just how little they understand the very Constitution they're always blathering about.

In fact, as I have written in prior comments in response to those that actually try to argue the Constitution bars gay marriage...that there is in fact nothing more constitutional than the equal rights of all citizens to marry the person they love. Ironically, the only thing unconstitutional in this whole sordid "debate" is Prop 8 itself: an effort strip legal rights of American citizens because of their sexual preference.

Thankfully this CONSTITUTIONAL right to marry continues to be reinforced by the courts, legal experts, and scholars.

The 14 Amendment could not be clearer on this...and in fact the very first line of the Constitution itself says, "establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity..." I don't see how giving gays basic equal rights isn't "justice", "promoting the general welfare", and/or the "blessings of liberty".

But Constitution aside, thankfully, thoughtful people that embrace our common humanity...and want to celebrate others love and marriage, are increasingly seeing through right wing, religious fundamentalist attempts to discriminate based on their warped interpretations of the Constitution.

Ten years from now, and certainly 20, we'll be looking back at this "debate" with shame and embarrassment, just as we do now regarding segregation or the denial of different races the right to marry or join the military.

For the best legal, factual, and moral explanation of these inalienable rights, defined in the Constitution (a constitution that was designed to evolve along with the citizens of this country by the way), just read Judge Walker's masterpiece...and if you can stomach it, try and get through any of the anti-equality sides baseless, bigoted, and almost comical attempts to justify their prejudices and fears.

The truth will set you free...