The California Supreme Court has just resolved a major procedural issue as to Prop. 8, which codified the “one man, one woman” definition of marriage into the California Constitution after the California Supreme Court held that there was a state constitutional right for same-sex marriage.
The opponents of Prop. 8 sued in federal court, and the California AG Jerry Brown refused to defend Prop. 8, leading other groups to step in. The federal district court ruled against Prop. 8, and one of the issues on appeal was whether the defenders of Prop. 8 had standing. The federal appeals court asked for an advisory opinion from the California Supreme Court as to California law, and the Supreme Court just ruled that the defenders did have standing to defend Prop. 8.
As reported at Volokh Conspiracy, this means that the 9th Circuit will decide the case on the merits, and not throw out Prop. 8 on procedural grounds:
The California Supreme Court has just decided that the official proponents of an enacted initiative — the group that got it onto the ballot — may, under California law, assert the state’s interest in defending the initiative when state officials refuse to do so. This means, given the Ninth Circuit earlier analysis of the matter, that the proponents of Prop. 8 have the legally required “standing” to appeal the trial court’s decision holding Prop. 8 unconstitutional. And that in turn means that the Ninth Circuit (and likely eventually the Supreme Court) can consider whether Prop. 8 is indeed constitutional.
As I have written before, the attempt to prevail on Prop. 8 on the standing ground not only was suspect on the merits, but was a stupid litigation tactic which caused substantial delay in resolution of the ultimate issue. It was too cute by half.
Update: Here is the key portion of the ruling:
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. 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 in the validity of the measure or to appeal a lower court judgment invalidating the measure when those public officials decline to assert that interest or to appeal an adverse judgment.
Accordingly, we respond to the question posed by the Ninth Circuit in the affirmative. In a postelection challenge to a voter-approved initiative measure, the official proponents of the initiative are authorized under California law to appear and assert the state‘s interest in the initiative‘s validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so.
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