By LISA LEFF
SAN FRANCISCO – The sponsors of a voter-approved same-sex marriage ban have the authority to defend the measure in court since the governor and attorney general refuse to do so, California’s highest court said in a precedent-setting ruling with consequences for the state’s vigorous citizens’ initiative process.
Responding to a question from a federal appeals court considering the constitutionality of the gay marriage ban known as Proposition 8, the California Supreme Court on Thursday said the lawmaking power granted to citizens under the state constitution doesn’t end once propositions have been approved or rejected by voters.
“It would clearly constitute an abuse of discretion for a court to deny the official proponents of an initiative the opportunity … to assert the people’s and hence the state’s interest in the validity of the measure and to appeal a judgment invalidating the measure,” the ruling states.
In the 61-page advisory opinion, the seven justices said denying ballot proposition backers a seat at the table would effectively grant the governor and attorney general veto power over initiatives with which they disagreed, a situation the justices said would undermine the law-making powers California gave voters in 1911.
“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,” the decision states.
A three-judge panel of the 9th U.S. Circuit Court of Appeals asked the state court in January to clarify who is eligible to fight for voter-approved initiatives in court when state officials opt not to. The panel said the question was unsettled under federal and California law, but central to its deliberations in the ongoing same-sex marriage skirmish because if the backers of 2008’s Proposition 8 lacked legal standing, it would have to dismiss the case.
The coalition of religious and conservative groups that qualified Proposition 8 for the ballot and successfully campaigned for its passage have asked the 9th Circuit to reverse a federal trial judge’s ruling in August 2010 striking down the measure as a violation of gay Californians’ civil rights. Former Gov. Arnold Schwarzenegger and Gov. Jerry Brown, in his previous role as state attorney general, took the unusual step of refusing to appeal the decision.
The appeals court panel now must decide whether to accept the court’s guidance and if so, how to apply it to Proposition 8. The state court’s word, while expected to carry substantial weight since it involves a state Constitutional matter, is non-binding on the federal court.
If the 9th Circuit does accept the Supreme Court’s interpretation, it would clear the way for the appeals court to analyze the substance of the appeal.
The ban’s supporters on Thursday cheered the likelihood of that happening now that the state court has weighed in.
“This victory is an enormous boost for Proposition 8 as well as the integrity of the initiative process itself,” Protect Marriage General Counsel Andy Pugno said.
Lawyers for the two gay couples who successfully sued to overturn the ban in the lower court had argued that if the ban’s backers did not have the right to appeal, the trial judge’s decision would stand and same-sex marriages would be legal in California for the first time since Proposition 8 passed three years ago.
After the Supreme Court ruling was issued, the couples’ lawyers said they still felt confident the ban ultimately would be struck down by the 9th Circuit and possibly reach the U.S. Supreme Court.
“We are very anxious to move forward on the merits,” said former U.S. Solicitor General Ted Olson, one lawyer for the couples.
The ruling establishes a state precedent that could be used in other ballot initiative cases the attorney general or governor decline to defend. Instances are rare of state officials refusing to appeal rulings that are adverse to voter-approved laws, but they have come up in California every couple decades or so.
Civil rights groups criticized the Supreme Court’s expansive view of the initiative process, predicting it would put minorities at a political disadvantage.
“Allowing the Prop 8 proponents to have special rights in court may open the floodgates to wealthy special interests to do the same,” said Courage Campaign chairman Rick Jacobs, whose group champions progressive causes in California. “The judges of the 9th Circuit must determine if people who had enough money to buy a ballot measure that calls for people to vote on each other’s rights should have special rights in federal court.”
John Matsusaka, president of the Initiative and Referendum Institute at the University of Southern California, said the court’s decision was consistent and would benefit initiative sponsors equally, regardless of ideology or fundraising capacity.
“People have to separate what they feel about Proposition 8 from what they feel about the right of the laws people have approved to have their day in court,” Matsusaka said.