BREAKING NEWS: California Supreme Court rules Proposition 8 supporters have legal standing

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• BREAKING NEWS: California Supreme Court tough on both sides in Proposition 8 hearing

(Editor’s note: This breaking news article will be updated with additional quotes and information as they become available. Check back often for new developments on this story.)

SAN FRANCISCO – In a crucial but non-binding decision related to the ongoing litigation involving Proposition 8, the California Supreme Court has just ruled that private parties do have legal standing to defend the state’s laws in court even if the state’s top officials do not agree to do so.

On Aug. 4, 2010, federal district Judge Vaughn Walker ruled that Proposition 8 was unconstitutional, and the Governor and the Attorney General of California later said that they would abide by the ruling and not appeal the decision.

ProtectMarriage, the anti-gay group that raised millions of dollars in support of Prop 8, which took marriage equality away from gay and lesbian Californians, then appealed Walker’s ruling to the Ninth Circuit Court of Appeals in San Francisco.

During the appeals hearing at the Ninth Circuit, the judges punted to the California Supreme Court to get a ruling on whether privates parties have legal standing in filing the appeal.

The Ninth Circuit Court of Appeals asked California’s high court to review the standing issue:

“Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.”

In its ruling today the state Supreme Court wrote:

In response to the question submitted by the Ninth Circuit, we conclude … 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.

The high-power legal team for the American Foundation for Equal Rights (AFER), which successfully argued in district court that Prop 8 was unconstitutional, said in a conference call this morning that the California Supreme Court ruling now paves the way for a fast decision by the Ninth Circuit Court of Appeals.

“This frees up the Ninth Circuit to decide the constitutional issues of the case,” AFER attorney Ted Olson said.

Olson said AFER remains confident that Judge Walker’s decision that Prop 8 is unconstitutional will be upheld by the Ninth Circuit. He said the case showed overwhelming evidence that gay and lesbian Californians are being denied their constitutional rights and are being harmed by Prop 8’s discriminatory nature by prevent marriage equality. He also noted that the Prop 8 supporters, ProtectMarriage, failed miserably in its defense of the California law in district court.

The appeals case has lingered in limbo since it was heard by the Ninth Circuit in December of last year.

Olson reminded reporters that the Ninth Circuit said it would accept the ruling by the California Supreme Court, but he also noted that on a federal level, the issue of standing has been interpreted differently. It is possible that the standing issue could be reviewed by a higher court.

“We are anxious to move forward with this case,” Olson said. “It’s been way too long for our clients … it’s time to vindicate lesbian and gay Californians who want to marry.”

Background on California Supreme Court hearing

The state’s high court grilled both sides during a session on Sept. 6, 2011.

Charles J. Cooper, the attorney for ProtectMarriage, was challenged by one justice on whether he could prove where there was actual injury to the Prop 8 proponents. Yet another justice dismissed Cooper’s citing of Karcher case law to support his contention that ProtectMarriage has a right to standing, noting rather dryly that the Karcher legal case had nothing to do with the initiative process.

Olson, one of the high-profile attorneys for AFER) also took a bruising from the justices. He argued that it would cause chaos if citizens could make the courts second-guess the Attorney General’s enforcement of laws. Olson argued that the only people who were harmed by Prop 8 were gay and lesbian Californians who cannot get married, not heterosexual couples who can legally wed.

The California Supreme Court’s ruling, which is non-binding in federal court but will carry considerable weight, will now be forwarded to the Ninth Circuit Court of Appeals. To date, the Ninth Circuit has not set a date to resume deliberations in the appeals case, though Olson and fellow AFER attorney David Boies indicated that the court could take action early next year.

Whatever the Ninth Circuit decides, the losing party is expected to appeal that decision to the U.S. Supreme Court. Olson said that the nation’s highest court could reject the case or put the case on its spring or fall schedule in 2012.

Meanwhile, Olson said two important legal matters involving Prop 8 are still pending before the Ninth Circuit.

ProtectMarriage attorneys have asked the appeals court to vacate Judge Walker’s decision that Prop 8 is unconstitutional … because the judge did not disclose that he was gay and involved in a long-term relationship. The motion was resoundingly rejected by Chief Judge James Ware in district court, and that decision was appealed to the Ninth Circuit.

Chief Judge Ware also ruled that the Prop 8 trial videos could be released to the public, but once again the ProtectMarriage attorneys appealed that decision to the Ninth Circuit. That hearing has been scheduled for Monday, Dec. 5, at the Ninth Circuit Court of Appeals in San Francisco.

AFER reacts about Supreme Court ruling on standing

Shortly after the state Supreme Court’s ruling that Prop 8 supporters had legal standing, AFER issued the following statement:

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. …

The Ninth Circuit’s impending ruling is important for a host of reasons:

First, we are confident that the Court will affirm our historic District Court victory. The anti-marriage Proponents of Prop. 8 failed to present a shred of credible evidence to justify discrimination against gay and lesbian Americans. Marriage is a fundamental right guaranteed by the U.S. Constitution, plain and simple.

Second, a Ninth Circuit victory can set an enormous precedent. The District Court decision that affirmed the right to marry for gay and lesbian Americans has had tremendous impact on public opinion. Since we filed the Perry case, seven national polls now show that a majority of Americans support marriage equality. That support will only grow as our case progresses and Americans are able to see the truth: when you look at the facts no American should ever be denied the fundamental freedom to marry.

Third, the potential reach of our case is greatly amplified. The Ninth Circuit is the largest appeals court in the nation, stretching the entire west coast and as far east as Montana and Arizona. This is an essential and critical step to bring our case before the U.S. Supreme Court and achieve our ultimate goal: full federal marriage equality. …

Every step of the way, AFER’s stellar bi-partisan legal team — led by Ted Olson and David Boies, along with experts in sociology, psychology and history, as well as thought and political leaders — is defending the right to marry both inside and outside the courtroom.

The anti-marriage activists that passed Prop. 8 have used up every trick in their book to delay, conceal, and distract from the truth. Now they need to confront the fact that they have no case.

Reactions to the ruling

Rick Jacobs, chair and founder of the Courage Campaign:

“While we respect the recommendations that the California Supreme Court made to the 9th Circuit Court of Appeals — that they grant standing to the proponents of the so-called ProtectMarriage.com — it is only a recommendation. Allowing the Prop 8 proponents to have special rights in Court may open the floodgates to wealthy special interests to do the same. 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. Regardless, we are confident that justice and love will prevail.”

Jon Davidson, legal director of Lambda Legal:

“While a disappointing ruling, this case is now back in federal court, where we expect a quick victory. The ruling addresses only a procedural legal question. The key question underlying this case is whether the U.S. Constitution permits a state electorate to treat one group of people unequally to everyone else by depriving them of what the state’s high court has held to be a fundamental right. A federal court has already ruled that it may not. We look forward to seeing that decision upheld so that same-sex couples in California may once again enjoy the freedom to marry.

“Today’s ruling also does not settle the question as to whether Prop 8 proponents have standing in federal court. It remains up to the U.S. Court of Appeals for the Ninth Circuit to decide whether or not the U.S. Constitution allows initiative proponents to defend a challenge to the measure the proponents supported when elected state officials don’t. We think the U.S. Supreme Court has made clear that they don’t.”

“In the end, the proponents of Prop 8 are just people with an opinion. That does not make them entitled to stand in for the government when they don’t agree with its decisions. We believe the U.S. Court of Appeals should rule that they lack standing under federal law and, if they don’t, that the full Ninth Circuit or the U.S. Supreme Court should rule that initiative proponents are not entitled to take over the government’s role.”

Shannon Price Minter, legal director of National Center for Lesbian Rights:

“This is a terrible decision in terms of its impact on California law. The court has given initiative proponents unprecedented and virtually unlimited power, and the people of California will be living with the dangerous consequences of that decision for years to come. That said, the Court’s ruling means that the Ninth Circuit likely will find that the proponents of Prop 8 have standing to pursue the appeal, which will put an end to the painful waiting game that has left same-sex couples and their families in limbo. The Ninth Circuit will now decide whether to affirm or reverse Judge Walker’s decision finding that Prop 8 is unconstitutional. In the bigger picture, this is good news for same-sex couples in California. Prop 8 is blatantly unconstitutional for many reasons — not only because it deprives same-sex couples of a basic right, but because it was enacted for the sole purpose of targeting a particular group in order to deny them equal protection of the laws. It is likely the Ninth Circuit will issue a ruling fairly quickly, since they agreed to hear the case on an expedited basis. But even if they do, it likely will not be soon enough to permit the Supreme Court to hear the case during its current term.”

Kate Kendell, executive director of National Center for Lesbian Rights:

“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. Nonetheless, we are relieved that the case is once again moving forward and the Ninth Circuit will now address whether the initiative proponents can continue this appeal and, if so, whether Prop 8 is constitutional. We hope the Ninth Circuit will issue its decision soon and hasten the day when this damaging law is off the books. Every day that goes by, same-sex couples in California are being denied not only the basic right to marry, but the right to be treated with equal dignity and respect. Same-sex couples in California have lived under the shadow of this unfair law for far too long.”

Stuart Gaffney, media director of Marriage Equality USA:

“Every day that Proposition 8 remains in effect, loving committed couples are being denied their fundamental freedom to marry. Many couples, together for years, are still being forced to wait for Prop 8’s ban to end so they can plan their weddings. They’ve waited long enough. We look forward to the case now returning to the 9th Circuit and are very hopeful that the court will find that Proposition 8 violates same-sex couples’ freedom to marry.”

John Lewis, legal director of Marriage Equality USA:

“Under federal law, a person can continue to litigate a lawsuit only if they have suffered tangible harm. The simple fact of the matter is that marriage equality opponents suffer no harm from the freedom to marry being extended to all loving, committed couples. Accordingly, despite today’s statement by the California Supreme Court about state law, marriage equality opponents lack standing under federal law to continue their litigation.”

Toni Atkins, California Assemblymember from San Diego

“Today’s ruling by the California Supreme Court gives initiative proponents the right to defend a measure in court when the State’s constitutional officers decline to do so. While I completely agree with Governor Brown and Attorney General Harris that Prop 8 unconstitutionally discriminates against LGBT people, I recognize that the Supreme Court was required to establish a rule that applied to all ballot measures – those we agree with and those we do not.

“We now look to the federal Ninth Circuit Court of Appeals to recognize that treating same sex couples as second class citizens violates constitutional principles. I am confident that Prop 8’s proponents, who used erroneous and misleading arguments to persuade voters to adopt the measure and then repeated their misinformation campaign in the lower court, will ultimately be unable to persuade the Ninth Circuit that marriage equality in any way harms Californians. They may have the legal right to defend discrimination but that does not make it defensible.

“As a member of one of the 18,000 couples who were able to exercise our freedom to marry in 2008 before Prop 8’s passage, I urge all couples now waiting for their turn to have hope and confidence in our legal system and the principles of freedom and equality upon which our nation was founded.”

Dwayne Crenshaw, executive director of San Diego LGBT Pride

“Our justice system failed us today as the California Supreme Court held that the oppressive voice of discrimination can wield our state’s constitution and our ballot initiative process like a weapon. We are confident that those who opposed marriage for gay and lesbian couples will ultimately lose their argument in court. This country promises equality for all and we expect that to be the final outcome.

“Federal law states a person can continue to litigate a lawsuit only if they have suffered tangible harm. The reality here is that the proponents of Prop 8 are the ones causing tangible harm towards loving, committed gay and lesbian couples. While the California Supreme Court may have made their recommendation today, we still must wait to hear from the 9th Circuit Court Appeals and hope that their decision falls on the side of justice and equality. Each day that passes without the freedom to marry is another day that gay and lesbian couples are harmed.

“As Dr. King said, the moral arc of the universe is long but it bends towards justice.”

David Codell, pro bono counsel for Equality California

“Handing the authority and decision-making power of the state to a small group of citizens with an extremist agenda sets an extraordinary precedent that could complicate efforts to challenge future unconstitutional initiatives and prolong the harm suffered by Californians impacted by those initiatives,” said David Codell, who serves as pro bono counsel for Equality California along with colleagues at Caldwell Leslie & Proctor, PC. “Equality California is disappointed in today’s decision because we do not believe that initiative proponents such as the sponsors of Proposition 8 should be deemed to have any authority to represent the interests of the State of California. That authority should lie in the hands of our elected officials, such as the governor and the attorney General, both of whom recognize that Proposition 8 violates the federal Constitution. We are hopeful that the 9th Circuit Court of Appeals will, in short order, affirm Judge Walker’s finding that Proposition 8 is unconstitutional and end the harms experienced by same-sex couples and their families as a result of this unjust initiative.”

Further reading

The full California Supreme Court opinion can be found HERE.