Court Rules Proposition 8 Supporters Can Defend Marriage

In a victory for supporters of traditional marriage, the California Supreme Court on Thursday ruled that proponents of Proposition 8 have the right to defend it in federal court. The ruling came after the U.S. Court of Appeals for the 9th Circuit queried the state’s high court in the matter.

Proposition 8 is a 2008 voter initiative to amend the state constitution to say “only marriage between a man and a woman” is legally valid in California, essentially banning same-sex marriage.

District Judge Vaughn Walker ruled Proposition 8 unconstitutional in the summer of 2010. Gov. Arnold Schwarzenegger and California Attorney General Jerry Brown refused to defend the amendment in court.

“The Court rescued the initiative process from being fundamentally undermined,” said Harold Johnson, an attorney with the Sacramento-based Pacific Legal Foundation, which filed a friend-of-the-court brief in the case. “Can initiatives be repealed unilaterally, simply by elected officials declining to defend them? The Court wisely said no.”

The ruling means the ProtectMarriage.com legal team, including Alliance Defense Fund (ADF) attorneys, have the right under state law despite the state’s refusal to defend its own constitution.

“The court was clearly right to conclude that the California marriage amendment should not go undefended just because state officials have refused to defend it,” says Brian Raum, ADF senior counsel. “Because the people of California have a right to be defended, Proposition 8’s official proponents will be allowed to continue defending the marriage amendment. Otherwise, state officials would have succeeded in indirectly invalidating a measure that they had no power to strike down directly.”

The California Supreme Court wrote in its opinion, “In a postelection challenge to a voter-approved initiative measure, the official proponents of the initiative are authorized under California law to appear and assert the state‘s interest in the initiative‘s validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so.

“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 court concluded. “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 to assert the state‘s interest….”

Although the 9th Circuit is not bound to abide by the State Supreme Court’s ruling, it typically does. But this is not likely to be the end of the matter. Proposition 8 watchers expect gay marriage proponents to take the case all the way up to the U.S. Supreme Court.