Prop. 8 appeal put back on track by State Supreme Court

Rules sponsors of voter-approved ban on gay marriage have right to defend measure

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.

Julia Cheever, Bay City News

— Bay City News Service


Like this comment
Posted by steve
a resident of Parkside
on Nov 18, 2011 at 8:22 am

"Gov. Jerry Brown and Attorney General Kamala Harris, have refused to defend the measure." This statement alone speaks volumes about how electing liberal Dems is undermining our country. The heighth of arrogance by this politicians to think they can selectively decide which laws they will enforce. Imagine if they decided not to prosecute pedophiles because they thought it would infringe on their rights. It's not that far out the reach of theri twisted view on how society should be.

Like this comment
Posted by Frances
a resident of Another Pleasanton neighborhood
on Nov 18, 2011 at 9:20 am

Jerry Brown and Kamala Harris should be impeached for not doing their California constitutional duties. They are obligated to defend Prop 8. It's not a matter whether you are for or against Prop 8, its a matter that these two incompetent political hacks are not doing their jobs. Kudos to the CA Supreme Court for allowing the backers to defend the will of the people. However, its anyone's guess what will happen when this gets taken up by the 9th Circuit Court of Appeals because it is dominated by Justices that let their politics interfere with their intepretation of the law.

Like this comment
Posted by Pete
a resident of Another Pleasanton neighborhood
on Nov 18, 2011 at 11:47 am

What a waste of money defending Prop 8... Prop 187 didn't listen to voters either. Right or wrong...just a money pit for lawyers.

Like this comment
Posted by Joe
a resident of Another Pleasanton neighborhood
on Nov 18, 2011 at 1:26 pm

Well, I look at it this way: if it was up to conservatives, many would try and bring back the slaves. If there were enough of them for it, the measure would pass. Does that mean it should be enforced?

Conservatives need to step back and get a grip on their bigotry. We really don't need any more of it around. Please keep your hatred inside your homes.

Like this comment
Posted by Pete
a resident of Another Pleasanton neighborhood
on Nov 18, 2011 at 4:27 pm

It's entirely conservative?... I think not. Both sides acknowledge defects in our American system... the system to win at all costs, regardless of outcome. A thinking and informed person would know that bigotry consumes both/all sides.

Like this comment
Posted by StopAndThink
a resident of Vineyard Avenue
on Nov 20, 2011 at 9:54 am

Joe says, "Conservatives want to bring back slavery." Classic example of resorting to name-calling or inflammatory remarks when you have no valid arguement.

Prop 8 was passed by a majority of the people. With the demographics of Cali, that had to include a lot of non-conservatives. It is disgusting and dangerous when government officials, especially in law enforcement, put their personal feelings or politics ahead of their oath. If the people pass a proposition -- any proposition -- it becomes state official's duty to support it.

By the way, the Constitution says, "Congress will make no law regarding the establishment of religion or the free exercise thereof." Could a solution be that government issues "civil union" licenses to any 2 people who want to be a couple... and let the various religions decide what constitutes "marriage?" The disagreement could largely be a semantics issue.

Like this comment
Posted by Legally Married Gay Pleasanton Couple
a resident of Downtown
on Nov 20, 2011 at 12:52 pm

I'm still waiting to hear when my husband and I get to vote on everyone else's marriage. If you want to protect the "sanctity of marriage"...ban divorce!

Like this comment
Posted by Cholo
a resident of Livermore
on Nov 20, 2011 at 6:21 pm

In my opinion, couples who are legally married but have produced no children, should be forced to be divorced.

Like this comment
Posted by Jwoon
a resident of Parkside
on Nov 20, 2011 at 7:04 pm

'legally married', as soon as you stop pretending that what you and your partner are engaged in is marriage, then you can criticize what makes marriages fail. It's not that you're concerned about failed marriages, you just want to advance your perverse lifestyle into the mainstream. Your selfish and narrow agenda will never be accepted by the mainstream of normal Americans

Like this comment
Posted by Mike
a resident of Highland Oaks
on Nov 20, 2011 at 9:17 pm

If two people want to legally entwine their lives, they should be able to do so.

Why is this such an issue?


Like this comment
Posted by Legally Married Gay Pleasanton Couple
a resident of Downtown
on Nov 20, 2011 at 10:51 pm

'Jwoon'...we are in fact legally married according to the state, having married in 2008 when it was legal here. And let's see, what are we engaged in exactly...we've been together for 10 years, share a home, share responsibilities, support one another, care for one another, love, honor and cherish one another, though sickness and health. Care for and are supportive of my two beautiful daughters (age 9 & 11) and do our best to make sure they grow up responsible & loving. We contribute to society through our jobs and taxes we pay as well as our volunteer and charity work. We're involved in our church and participate in our community on a regular basis. Not quite sure what about any of this is "perverse." The only "agenda" I ever have is love over hate, understanding over fear, peace over violence. I really hope you're wrong and that these things do get accepted by Americans...In fact, I think they already have been. I'll pray for you though. :)

Like this comment
Posted by Another Jwoon
a resident of Another Pleasanton neighborhood
on Nov 21, 2011 at 6:57 pm

I have also posted with the name Jwoon, but I am not the "Jwoon" who spewed his hatred above. Wishing Legally Married Gay Pleasanton Couple all happiness. Respectfully yours, Jwoon

Like this comment
Posted by fed up
a resident of Another Pleasanton neighborhood
on Nov 21, 2011 at 8:15 pm

Call it a Civil union. Give them the same rights as married people and be done with it. Don't we have more important things to spend the tax dollars on than this rediculious Crap!!!!!

Like this comment
Posted by Another Jwoon
a resident of Another Pleasanton neighborhood
on Nov 21, 2011 at 9:59 pm

Fact is, "fed up" who can't spell, it is the Mormons and Catholic Church that has spent all the money on this matter. Get you facts straight.

Like this comment
Posted by Cholo
a resident of Livermore
on Nov 22, 2011 at 9:25 am

duh..."you" facts straight?



Sorry, but further commenting on this topic has been closed.

New state housing requirements could affect Pleasanton
By Jeb Bing | 6 comments | 647 views

Salami, Salami … Baloney
By Tom Cushing | 25 comments | 527 views

Time for new collaboration between city and school district
By Tim Hunt | 2 comments | 442 views