Cal Supreme Court Grants Standing to Proponents of Prop 8

In a decision viewed as a major victory for opponents of same sex marriage, the California Supreme Court granted the proponents of the ballot initiative standing to defend measures in court when the governor and attorney general refuse to do so.

“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 court said, and reasoned that it “would exalt form over substance to interpret California law in a matter that would permit these public officials to indirectly achieve such a result. … “

Refusal to grant standing might have short-circuited a challenge to the court’s decision striking down Prop 8 as unconstitutional.  On the other hand, it would have left unresolved the larger issue that could have been settled by the US Supreme Court – whether laws prohibiting same sex marriage violate the Constitution’s equal protection clause.

The result had proponents of the ban cheering, but supporters of gay marriage downplayed its significance.

Ken Pierce of Equality Action called the ruling “a mixed bag” and noted, “Basically what this says is, our fight continues. Other states are getting marriage equality while California is sitting and languishing.”

Speaker John Perez likewise said, “Today’s opinion by the California Supreme Court underscores what we have known all along: the road to an equal standing in the eyes of the law will be long and winding. We must have patience as this case moves through the judicial system.”

He added, “The original trial demonstrated clearly the power and force of our arguments, and the last few years have shown enormous progress for LGBT Californians. These are hopeful signs of progress, and I remain confident we will ultimately prevail.”

Attorney General Kamala Harris, who followed Jerry Brown in not defending the law, issued a statement saying, “While the Department of Justice argued the Proposition 8 proponents do not have standing to pursue this appeal, the court has ruled otherwise. This ruling now shifts the litigation to the federal court of appeals. I firmly believe that Proposition 8 violates the equal protection and due process clauses of the U.S. Constitution and am confident that justice will prevail.”

The bottom line can be found in the analysis of UC Davis Law Professor Vikram Amar, who in the San Francisco Chronicle this morning argues that the case is headed to the Supreme Court.

In the meantime, and perhaps as importantly, the court asked, “Do initiative sponsors have legal standing to defend initiatives in federal court?”

Writes Professor Amar, “To decide this question, the federal Ninth Circuit turned to the California Supreme Court. The Ninth Circuit asked the California justices whether, as a matter of California law, initiative sponsors can represent the state’s electorate when elected officials decline to defend.”

“Thursday, the California justices unanimously said ‘yes,’ essentially because it would make no sense for elected officials to have the power to let an initiative die for lack of a defense. The initiative device, after all, is supposed to be a check on elected officials,” the Professor writes.

The Professor believes that if the Ninth Circuit rules on the merits of Judge Walker’s ruling, and affirms it, that “the U.S. Supreme Court may have no choice but to take up the case.”

My own view is that this a good thing, on two grounds.  First, I agree with Professor Amar, that the purpose of the initiative process is to act as a check on election officials, and that would not work if proponents had to rely on elected officials to defend their measures in court.

That issue is now put to rest and I think rightly so.  I never believed the Attorney General or Governor to be compelled to defend measures that they believed unconstitutional, and now they do not have to.

Moreover, denial of standing would have likely doomed Proposition 8, but to what effect?  It would have no standing over the rest of the nation.  It would not advance the cause other than to allow same sex marriage in California – an important but small step in a long process.

Ultimately, the Supreme Court will have to rule on the constitutionality of laws such as these.  The sooner the better, as far as I am concerned.

It is unclear whether a Proposition 8 would win in the future in California.  Demographics are shifting and I believe it is only a matter of time before the majority, at least in states like California, support same sex marriage.

Recent polling shows that a narrow plurality of Californians now favor the right for same sex couples to marry, and three-quarters favor some kind of special legal status for such relationships.

These data suggest that gay rights supporters may simply be able to overturn Proposition 8 through a vote of the people.

Demographic shifts show that the oldest generations have the most resistance to same sex marriage, but as the demographics shift, younger people are strongly in favor of same sex marriage.

It is only a matter of time, at least in California, and probably the rest of the nation eventually, before there is a strong consensus for same sex marriage, which will render most of these fights moot.

In the meantime, for many this has been a long and tiresome fight, and all we can say is that time and history will be on their side.  As Martin Luther King once said, “The arc of the moral universe is long but it bends toward justice.”

—David M. Greenwald reporting