Appeal proceedings in the legal battle over the constitutionality
of California's Proposition 8 were put back on track by the state Supreme Court Thursday.
The California high court unanimously ruled in San Francisco that
the sponsors of the voter-approved ban on gay marriage have a right to step into the case in the place of state officials to defend the measure in a federal appeals court.
The case will now go back to the 9th U.S. Circuit Court of Appeals in San Francisco for a ruling on federal constitutionality of the 2008 voter initiative.
The sponsors of Proposition 8 are seeking to appeal a decision in
which now-retired U.S. District Judge Vaughn Walker last year struck down the measure, saying that it violates federal constitutional rights of equal treatment and due process.
But in January, the 9th Circuit said that federal law as
interpreted by the U.S. Supreme Court doesn't appear to allow such an appeal when state officials, including Gov. Jerry Brown and Attorney General Kamala Harris, have refused to defend the measure.
The federal court then asked the state high court to advise it as
to whether California law provides initiative proponents with standing, or the legal right to appeal, in such circumstances.
In today's ruling, the California panel said state law does
provide that right and that "the purpose and integrity of the initiative process" set forth in the state Constitution are at stake.
"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 public when the public officials who normally assert that interest decline to do so," Chief Justice Tani Cantil-Sakauye wrote on behalf of the court.
"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," Cantil-Sakauye continued.
"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 right to step in," the chief justice wrote.
The court noted it was not ruling on the validity of Proposition 8
itself, but rather on a procedural matter affecting California voter
initiatives in general.
Andrew Pugno, a lawyer for the Proposition 8 proponents and their committee, Protect Marriage, said, "This victory is an enormous boost for Proposition 8 as well as the integrity of the initiative process itself.
"Today's decision is a critical step in our three-year battle to
uphold marriage between a man and a woman. Now we can return our focus to the 9th Circuit Court of Appeals," Pugno said.
Theodore Olson, a lawyer for two couples who challenged the
marriage ban, had argued against allowing standing, but said today, "We're very happy to have the opportunity to go forward as promptly as possible.
"We are very hopeful of a relatively prompt 9th Circuit decision
and we are confident the case against Proposition 8 is overwhelming," Olson said.
"We hope the long wait for gay and lesbian Californians will soon
be over," he said.
Harris issued a statement noting she had argued the proponents
lack standing, but saying, "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," Harris said.
A three-judge 9th Circuit panel heard arguments last December on the constitutionality of the marriage ban. It is not known whether the panel will now ask for further arguments before ruling.
The panel's eventual decision can be appealed an expanded 11-judge appeals panel and then to the U.S. Supreme Court.
On a separate but related issue, the 9th Circuit panel is
scheduled to hear arguments in San Francisco on Dec. 8 on whether a videotape tape made of the 13-day nonjury trial before Walker last year can be unsealed and made public.
The California court opinion was applauded by the Sacramento-based Pacific Legal Foundation, which submitted a friend-of-the-court brief supporting the proponents' right to appeal.
PLF attorney Harold Johnson said, "This year marks the 100th
anniversary of the California initiative process, and the state Supreme Court offered a welcome birthday gift.
"The court rescued the initiative process from being fundamentally undermined. The court recognized that when voters exercise their right to enact a law or constitutional amendment by initiative, that measure deserves a defense when challenged," he said.
The San Francisco-based National Center for Lesbian Rights, which submitted a brief opposing the grant of standing, said it was disappointed.
"We disagree profoundly with the California Supreme Court's
holding that a handful of unelected initiative sponsors have the power to represent the interests of the entire public and to override the decisions of the state's elected executive officers," said NCLR Executive Director Kate Kendell.
"Nonetheless, we are relieved that the case is once again moving
forward. We hope the 9th Circuit will issue its decision soon and hasten the day when this damaging law is off the books," she said.
If the proponents had not been allowed to appeal, Walker's
decision overturning Proposition 8 would have been left in place, but the two sides differed on how widely that decision would apply.
Proposition 8, enacted by voters in November 2008, amended the California Constitution to provide that "only marriage between and man and a woman is valid or recognized in California."
The amendment overturned a May 2008 decision in which the
California Supreme Court had said the state document provided a right to same-sex marriage.
Four days before that decision was issued, a lesbian couple from
Berkeley and a gay couple from Burbank challenged Proposition 8 in a federal lawsuit filed in San Francisco, changing the legal arena from state to federal constitutional issues.