The California Supreme Court unanimously ruled that the proponents of Proposition 8, the voter initiative that amended the California Constitution in 2008 to provide that only the marriage of one man and one woman will be recognized or valid in California, have standing as a matter of state law to represent the state's interest in defending the constitutional amendment from a federal constitutional challenge. Perry v. Brown, 2011 WL 5578873 (November 17, 2011).
Answering questions certified to the court by a three-judge panel of the U.S. Court of Appeals for the 9th Circuit last January, the court opined that where, as in this case, the named defendants in the underlying lawsuit, including the governor and the attorney general, were not providing a defense to a validly enacted initiative measure, it would be an abuse of discretion by a California court to refuse to allow the proponents of the measure to participate as parties to represent the interest of the state as expressed by its voters in adopting the measure.
The court also observed that the 9th Circuit panel, in its certification opinion, had indicated that if the Proponents had standing to represent the state as a matter of California law, they would most likely be found to have standing as a matter of Article III of the U.S. Constitution. Thus, this opinion means that it is almost certain that the 9th Circuit panel will eventually take up the Proponents' appeal on the merits, leaving open the road to possible review by the United States Supreme Court in a ruling that would have precedential weight nationwide either on the question whether states can amend their constitutions to ban same-sex marriages or, even more elementally, whether same-sex couples have a right to marry pursuant to the due process and/or equal protection clauses of the 14th Amendment.
If the 9th Circuit were to conclude that Proponents have no standing, the district court's decision would most likely stand, restoring the right of same-sex marriage in California but not creating a binding precedent for any other state.
Although the California Supreme Court had never previously directly addressed this issue, wrote Chief Justice Tani Cantil-Sakauye for the court, the court's conclusion arose inevitably from a long history of litigation over the defense of statutes and constitutional amendments adopted by voter initiative. California courts have consistently allowed initiative proponents to participate in the ensuing litigation over the validity of the enacted initiative, regardless of whether the named defendant (be it the governor, the attorney general, an agency head, or another public official) was mounting a defense.
One reason for this, wrote the Chief Justice, is that official government defendants might not present as vigorous a defense as proponents would, especially where the government officials had themselves been opposed to enactment of the initiative, as was true in the case of Proposition 8. In addition, proponents of an initiative are given particular status under the state's Election laws in terms of supplying official arguments in support of their initiative in the voter pamphlets,they generally play a leading role in the political campaign to enact the initiative, and are thus likely to make the strongest possible arguments in its defense.
Echoing a concern that had been voiced by the 9th Circuit panel when it certified the questions to the California Supreme Court, the court pointed out that the initiative process itself would be undermined if the governor or the attorney general had a virtual "veto" over an amendment whose enactment they opposed if they could refuse to appeal an adverse trial court ruling on its constitutionality. The Chief Justice pointed out that high courts in two other states, Alaska and Montana, had reached the same answer to this question in similar cases.
The court rejected arguments by the Perry v. Brown plaintiffs that the California constitution gives the Attorney General sole authority to represent the state's interest in defending legislative or constitutional provisions, pointing out that the courts have frequently allowed initiative proponents to do so, and that in some cases other government officials have appeared as defenders, especially where the Attorney General was not providing a defense. Grounding the Proponents' standing in the California constitutional provisions establishing the initiative process, the court rejected the contention that letting Proponent's represent the state's interest was a violation of separation of powers or would improperly intrude upon the prerogatives of the Attorney General or the executive branch of the state government.
The court emphasized both the narrowness and the generality of its holding, emphasizing that its opinion on this standing question had nothing to do with the subject matter of the challenged measure (same-sex marriage) and everything to do with the failure of the government and the attorney general to mount a substantive defense. The certified question asked both whether the proponents of Proposition 8 had a "particularized interest" at stake as a matter of state law that would provide a basis for according them standing, or alternatively whether they were authorized by state law to represent the state's interest in defending a California law against constitutional challenge. The court decided that it was unnecessary to decide the "particularized interest" issue, having resolved the "state representation" issue in favor of the Proponents of Prop 8.
The court also discussed the likely outcome from its opinion. The 9th Circuit had already signaled in its opinion certifying the questions that if the California Supreme Court found that proponents had standing to represent the state's interest, that would likely be sufficient to satisfy the standing requirement under Article III of the United States Constitution, as it has been developed in Supreme Court cases. Had the California Supreme Court ruled against the representative interest but found that Proponents had the necessary "particularized interest" for purposes of state law, it is not quite so certain that the 9th Circuit panel would resolve the standing question in the same way.
Assuming now that the 9th Circuit panel will conclude that Proponents have standing, the next step would be to decide the case to the merits. At oral argument last December, the panel devoted the first half of the argument to the standing issue and the second half to the merits. It may be that the panel will decide that no further briefing or oral argument is required, and proceed to decide the merits and issue an opinion. If the 9th Circuit panel affirms District Judge Walker's ruling holding that Prop 8 is unconstitutional, the Proponents may seek review from a larger panel of the 9th Circuit (11 judges sitting "en banc") or may directly petition the Supreme Court for review. The Supreme Court has discretion over whether to grant review. It seems likely that it would review a decision holding that a measure such as Proposition 8 violates the federal constitution, given the large number of states that have adopted similar constitutional amendments. (It is likely that a petition for review by Proponents would be accompanied by amicus briefs from state Attorney Generals in support of granting review.)
If the 9th Circuit reversed Judge Walker's decision, the question whether to appeal falls to the American Foundation for Equal Rights, which found the plaintiffs and hired the lawyers to bring this action. Since their announced goal from the outset was to bring the issue of same-sex marriage to the Supreme Court, one would expect that they would file a petition for certiorari without delay. Co-counsel in the case, David Boies and Ted Olson, reacted to the California Supreme Court decision with eagerness to defend Judge Walker's ruling on the merits. Their case is now back on track after this diversion over the standing issue.