California’s Gay Wedding Ban Defense Weighed by State Court

Proponents of California’s Proposition 8 ban on gay marriage told the state’s high court that they should be allowed to defend the measure after state officials refused to do so.

California courts have recognized that the state’s initiative process, which allows voters to enact legislation, gives proponents of ballot measures wide latitude to intervene when the validity of propositions are challenged, said Charles Cooper, an attorney representing Proposition 8’s backers.

“The court has recognized consistently that official proponents have a direct interest,” Cooper said today at a hearing in San Francisco.

The California Supreme Court will decide whether backers of the measure, passed by California voters in 2008, can stand in for the state in their appeal of a federal judge’s ruling last year that Proposition 8 is unconstitutional. California Governor Jerry Brown, a Democrat who was attorney general during the trial, and Arnold Schwarzenegger, a Republican who was then governor, refused to defend the state constitutional amendment.

The state’s high court has had a liberal intervention policy in cases about voter-approved initiatives, allowing initiative proponents to stand “shoulder to shoulder” with state officials when a proposition is being challenged, said Chief Justice Tani Cantil-Sakauye. Yet the court has never been asked to decide whether initiative proponents are authorized to stand in for the state when state officials refuse, she said.

Issue of ‘Standing’

The U.S. Court of Appeals in San Francisco, which is handling the appeal, asked the state high court to decide the issue of “standing” before it considers the question of whether Proposition 8 discriminates against gay and lesbian couples. A decision from the California court will be issued within 90 days.

Cantil-Sakauye asked Cooper whether it would be enough to tell the federal appeals court that California courts have traditionally allowed proposition proponents to intervene in challenges to ballot measures in the interest of fairness to both sides of an issue.

“I believe it would,” Cooper said.

Gay couples who sued to overturn Proposition 8 claim the measure’s proponents lack standing and their appeal should be dismissed. Prior U.S. Supreme Court rulings and California law establish that proposition proponents don’t have the right to stand in for government lawyers when a measure is challenged, said Theodore Olson, an attorney representative the couples.

‘Fundamental Fairness’

“Then the people are unrepresented,” said Justice Joyce Kennard. “It would appear that agreeing with you would not promote principles of fundamental fairness.”

California Attorney General Kamala Harris, a Democrat who took office in January, said in court filings that Proposition 8 proponents aren’t authorized to represent the state’s interest in the case and asked the state high court to reject their request for standing.

“Isn’t it the case that they are the ones most clearly invested in the success of the proposition?” Justice Goodwin Liu asked Olson.

“They raised more money” and took other steps to get the initiative passed, Olson said. Still, there’s nothing in the initiative process or the California Constitution that gives the Proposition 8 proponents the right to represent the state’s interest in the federal appeals court, he said.

Lawyers for the proponents say that if they have no standing to appeal, then the appeals court must dismiss the appeal and throw out the judge’s decision overturning the measure.

In a separate state lawsuit, the California Supreme Court upheld Proposition 8 in 2009 and ruled that 18,000 gay marriages performed before the ban remain valid. The court had voted 4-3 in May 2008 to legalize gay marriage.

In the 2009 case, the court said Proposition 8’s proponents had standing to defend the measure.

The case is Perry v. Schwarzenegger, 10-16696, U.S. Court of Appeals for the Ninth Circuit (San Francisco).

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