Backers win right to fight for Prop. 8

Reporting from San Francisco -- The California Supreme Court ruled that the sponsors of Proposition 8 have the right to defend the measure, clearing the way for federal courts to decide the constitutionality of same-sex marriage bans.

Thursday’s unanimous decision, written by Chief Justice Tani Cantil-Sakauye, strongly affirmed that ballot sponsors may represent California in defending initiatives when elected officials fail to do so. Gov. Jerry Brown and Atty. Gen. Kamala D. Harris have refused to challenge last year’s federal ruling against Proposition 8.

“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 wrote for the court.

Legal scholars said the state high court’s decision was so adamant that the U.S. Supreme Court, which could decide marriage rights as early as 2013, was unlikely to limit its ruling to the narrow and technical issue of “standing,” a legal term for the right to go to court.

“It’s a gangbusters opinion,” said Santa Clara University law professor Gerald Uelmen, an expert on the state high court.

“This makes such a strong case that the sponsors represent the state and can represent the state’s interests that it pretty much seals the deal,” he said.

Advocates for two same-sex couples who challenged Proposition 8 in federal court said Thursday that they expected the U.S. 9th Circuit Court of Appeals to rule no later than February on the constitutionality of the 2008 ballot measure, which banned same-sex marriage.

The 9th Circuit indicated last December that it was leaning toward finding Proposition 8 unconstitutional if the standing issue was resolved. But such a decision would probably be appealed to the U.S. Supreme Court.

The 9th Circuit’s ruling will affect all Western states within its jurisdiction. If the U.S. Supreme Court upholds marriage rights, its decision would benefit gays even in states like New York where same-sex marriage is already legal, activists said.

In asking the California Supreme Court to clarify the right of sponsors to defend Proposition 8, a three-judge panel of the 9th Circuit said it would abide by the state court’s decision.

Thursday’s ruling was a defeat for gay rights groups, which argued that ProtectMarriage had no standing to appeal U.S. District Judge Vaughn R. Walker’s ruling last year that found the state’s same-sex marriage ban unconstitutional. The groups contended that only elected state officials could appeal.

But Jennifer Cunningham, a New York coordinator of several gay rights groups, said the California Supreme Court decision would accelerate federal review of marriage rights, and “a rising tide lifts all boats.”

The California court’s decision was also a setback for state officials, who had insisted that they had the exclusive right to defend ballot measures in court.

In a terse statement, the attorney general noted that the court had disagreed with her but expressed certainty that “justice will prevail” in the federal courts. Seven national polls during the last year have reported majority support for same-sex marriage.

ProtectMarriage celebrated the ruling, contending that it signaled the demise of the Proposition 8 lawsuit.

“This ruling is a huge disaster for the homosexual marriage extremists,” said Andy Pugno, an attorney for ProtectMarriage.

“The court totally rejected their demands that their lawsuit to invalidate Proposition 8 should win by default with no defense,” he said.

“Their entire strategy relied on finding a biased judge and keeping the voters completely unrepresented. Today that all crumbled before their eyes.”

Several gay rights groups expressed disappointment.

If the state court had found that ProtectMarriage lacked standing, Judge Walker’s ruling would have remained on the books and ProtectMarriage’s appeal would have been dismissed.

But Walker’s ruling would have been limited to California.

“This ruling means that it may be years before loving gay and lesbian couples will again be able to marry in California,” said Tom Watson, chairman of the board of the gay rights group Love Honor Cherish.

Chad Griffin, who heads a group that launched the federal Proposition 8 challenge, said he was relieved the case would return to federal court. Griffin said he still expects to prevail on constitutional questions.

“I have always said that either way the California Supreme Court rules, we will ultimately achieve our goal, and that is Proposition 8 being erased from the books,” Griffin said.

The court’s 61-page ruling upheld the rights of all initiative sponsors, not just ProtectMarriage. Legal analysts described it as well-crafted and broad.

The chief justice stressed that the decision was not about gay rights but about the initiative process.

“The resolution of this procedural question does not turn on the substance of the particular initiative measure at issue, but rather on the purpose and integrity of the initiative process itself,” Cantil-Sakauye wrote.

Justice Joyce L Kennard, writing separately, said the “integrity and effectiveness of the judicial process require that a competent and spirited defense be presented” when an initiative is challenged.

Otherwise, Kennard wrote, the state’s executive branch could “effectively annul voter-approved initiatives simply by declining to defend them.”

UC Irvine Law School Dean Erwin Chemerinsky said the ultimate victor in Thursday’s decision would not be known until the U.S. Supreme Court ruled.

“If the Supreme Court uses this as the vehicle for holding there is a right to marriage equality for gays and lesbians, then what the California Supreme Court did today will turn out to be a huge victory for gays and lesbians,” said Chemerinsky, who contends that Proposition 8 is unconstitutional.

The 9th Circuit is considering other pending disputes over Proposition 8 beside its constitutionality.

ProtectMarriage wants the appeals court to overturn Walker’s ruling on the grounds that he should have disclosed he was in a long term same-sex relationship.

Walker, a Republican appointee with libertarian views, did not publicly disclose his sexual orientation until after his ruling, nor did he attempt to hide it. The silver-haired, now-retired jurist often took his partner to bar events in San Francisco.

The 9th Circuit has also scheduled a hearing for early next month on whether to make public the videotape and recordings of the Proposition 8 trial. ProtectMarriage has argued that they should remain sealed. Gay rights groups want them released.

Gay couples challenged Proposition 8 in federal court just days before the California Supreme Court held that it was a valid state constitutional amendment. The state high court had ruled 4 to 3 in May 2008 that the state’s marriage ban was unconstitutional, but Proposition 8 reinstated the ban the following November.

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