In a general opinion, Court favors giving initiative proponents authority to defend measures

By Brian Leubitz

As I mentioned yesterday, today the California Supreme Court has ruled on the certified question from the 9th Circuit regarding standing.  I’ll get into more details in a bit, but here is the general ruling from the court:

In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.

Here is the full opinion (PDF), more in a bit.

What does this mean? Well, it ends the easy way out of the case.  Standing is a threshold question, that must be resolved before the judge or judges in the case get to the merits of the case. Standing is appealable, but a decision by a lower court in a case as controversial as this to duck the question would hardly give the US Supreme Court any motivation to enter the fray themselves.  In this situation, the question of standing is really a state law question anyway.  The California Supreme Court should really be the body deciding who represents the state.  

In this situation, both the Governor and the Attorney General declined to defend Prop 8, as they both felt it was unconstitutional. The Proponents defended the measure in the trial court as intervenors, but the decision to appeal isn’t one that can typically be done by intervenors.  So, if they were allowed to appeal, they would have to be granted some special standing.  This decision is not specific to Prop 8 at all, rather it just says that when California’s elected officials refuse to defend a ballot measure in court, the Proponents of the measure are “authorized to assert the state’s interest in the initiative’s validity.”

In other words, the 9th Circuit is now on the clock for their decision on the merits.  This is not necessarily a bad thing.  AFER has built up a strong legal team and they constructed a good record at the trial court. They have the money to proceed all the way to the Supreme Court on Perry v Brown, lord knows with all the fundraising AFER has been doing, they have the money. But hey, if you are Chad Griffin, the man behind AFER, why not ask for some more money, because, well, AFER is really, really good at that. In his reaction to the case that seems to have been pre-written, Griffin seems to be relishing the fight (and asking for more money.)

Our federal lawsuit for marriage equality is back on the fast track!

Now that the California Supreme Court has finally issued its advisory opinion that the Prop. 8 Proponents have standing to appeal, we can expect a speedy ruling from the Ninth Circuit Court of Appeals.  We are on the cusp of achieving what we have been fighting for. For countless couples like our plaintiffs, Kris Perry & Sandy Steir and Paul Katami & Jeff Zarrillo, marriage equality cannot come quickly enough.

Help us win the freedom to marry for couples like Kris & Sandy and Paul & Jeff. Make a donation today so we can continue our fight for full federal marriage equality. (donation link)

Look, I know that it is in AFER’s best interest to move forward for this case, but I think celebrating this decision looks kind of silly.  There was much discussion of the possibility of marriages beginning again this year, but that doesn’t seem all that likely at this point.  The 9th Circuit now will rule on the merits of the case, and we’ll wait longer for this case to proceed.

So, no quick way out.  Now, given that this case has taken so long, one of the AFER arguments to bring the litigation over the objection of many LGBT organizations, that we cannot tolerate a measure like this for one day longer now looks rather stark.  The question I have now is given that we’re still looking at many more layers, could we have gotten it done at the ballot box? I suppose we won’t know, as it won’t be on the 2012 vote. I’m pretty sure we would have won, but it would have cost more.  And the impact of a Sup. Ct. win on this case would have an impact for the entire nation.

But, we’re still rolling the dice here, no matter what we do.  So, let it ride!