Court Rules That Backers of Prop 8 Can Defend It

The sponsors of ballot propositions can step in to defend their initiatives from legal challenges if the governor and attorney general refuse to do so, California's highest court said Thursday.

Responding to a pivotal question from a federal appeals court that is considering the constitutionality of the state's gay marriage ban, the California Supreme Court said the lawmaking power granted to citizens under the state constitution doesn't end once propositions have been approved or rejected by voters.

"We conclude that California law authorizes the official proponents, under such circumstances, to appear in the proceeding to assert the state's interest in the initiative's validity and to appeal a judgment invalidating the measure," the unanimous ruling written by Chief Justice Tani Cantil-Sakauye states.

In the 61-page 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 California's vigorous citizens initiative process.

"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," the decision said. "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 ..."

Although non-binding on the 9th U.S. Circuit Court of Appeals panel that requested the California court's guidance, 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.

"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."

A three-judge 9th Circuit panel 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 both federal and California law, but central to its deliberations in the ongoing Proposition 8 skirmish because if the backers of the 2008 gay marriage initiative lack legal standing, it must dismiss the case.

The coalition of religious and conservative groups that qualified Proposition 8 for the ballot and successfully campaigned for its passage 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.

Both 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.

Lawyers for the two gay couples who successfully sued to overturn the ban in the lower court have 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.