September 7, 2011
Hearing: Speed Bump Unlikely to Derail Proposition 8 Appeal
Alliance Defense Fund attorneys went before the California Supreme Court Tuesday to argue that they should be allowed to continue to appeal an earlier ruling. The ruling overturned Proposition 8, the state constitutional amendment authored by ProtectMarriage.com and passed by the voters in 2008. Tuesday’s hearing addressed a much more narrow question, one that could stop the appeal from proceeding.
At issue is whether or not ProtectMarriage.com has “standing.” In federal courts, people cannot sue someone simply because they believe a law is unconstitutional. The party bringing the lawsuit must be able to show that they are actually impacted by the law. For example, when Proposition 8 passed, same-sex couples sued the state of California who were able to claim that the proposition kept them from marrying. The lawsuit could not be brought by a heterosexual couple who wanted to argue against the amendment.
When the Proposition 8 case went to the federal courts, the state of California refused to defend the amendment. Then attorney general (now governor) Jerry Brown said he agreed with the plaintiffs' claim that Proposition 8 was unconstitutional. The court allowed ProtectMarriage.com to stand in and provide a defense of the proposition. But when Chief US District Judge Vaughn Walker ruled that the proposition was unconstitutional, he also warned that the ProtectMarriage.com may not have standing to file an appeal because they had failed to show how they were personally harmed by same-sex marriage.
The key point is that the original suit was not brought against ProtectMarriage.com. They were allowed to intervene and offer a defense of Proposition 8, but they were not being sued. By appealing, they are the ones bringing suit. To do that, ProtectMarriage.com must have standing.
The Ninth Circuit Court of Appeals is not convinced that ProtectMarriage.com has standing. The Court asked the California State Supreme Court:
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.
Or, stated in 60 fewer words: Does state law gives groups like ProtectMarriage.com standing when the state refuses to defend a proposition?
ADF attorney Austin Nimocks said that if proponents of a proposition cannot defend it in court, then the state officials could effectively veto propositions.
“Voters should not be left without any defense just because their officials refused to defend them,” Nimocks said. “Ultimately, this hearing concerns whether the people of California who voted for Proposition 8 will be defended at all.”
Members of the California Supreme Court seemed sympathetic to the ADF's argument. Justice Joyce Kennard said that allowing state officials to effectively veto propositions by not defending them would eliminate the right of the people to propose and pass propositions. Justice Carol Corrigan said that it would also hurt the separation of powers because it would effectively give executive officials the power to decide the constitutionality of a proposition.
Once the California Supreme Court makes a decision, the case will return to the Ninth Circuit to make its own determination on whether to return to the actual appeal. Regardless of what the Ninth Circuit decides, the case will most likely be appealed to the U.S. Supreme Court.
Image via Wikimedia Commons.