In a decision viewed as a major victory for opponents of same sex marriage, the California Supreme Court granted the proponents of the ballot initiative standing to defend measures in court when the governor and attorney general refuse 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 said, and reasoned that it “would exalt form over substance to interpret California law in a matter that would permit these public officials to indirectly achieve such a result. … “
Refusal to grant standing might have short-circuited a challenge to the court’s decision striking down Prop 8 as unconstitutional. On the other hand, it would have left unresolved the larger issue that could have been settled by the US Supreme Court – whether laws prohibiting same sex marriage violate the Constitution’s equal protection clause.
The result had proponents of the ban cheering, but supporters of gay marriage downplayed its significance.
Ken Pierce of Equality Action called the ruling “a mixed bag” and noted, “Basically what this says is, our fight continues. Other states are getting marriage equality while California is sitting and languishing.”
Speaker John Perez likewise said, “Today’s opinion by the California Supreme Court underscores what we have known all along: the road to an equal standing in the eyes of the law will be long and winding. We must have patience as this case moves through the judicial system.”
He added, “The original trial demonstrated clearly the power and force of our arguments, and the last few years have shown enormous progress for LGBT Californians. These are hopeful signs of progress, and I remain confident we will ultimately prevail.”
Attorney General Kamala Harris, who followed Jerry Brown in not defending the law, issued a statement saying, “While the Department of Justice argued the Proposition 8 proponents do not have standing to pursue this appeal, the court has ruled otherwise. This ruling now shifts the litigation to the federal court of appeals. I firmly believe that Proposition 8 violates the equal protection and due process clauses of the U.S. Constitution and am confident that justice will prevail.”
The bottom line can be found in the analysis of UC Davis Law Professor Vikram Amar, who in the San Francisco Chronicle this morning argues that the case is headed to the Supreme Court.
In the meantime, and perhaps as importantly, the court asked, “Do initiative sponsors have legal standing to defend initiatives in federal court?”
Writes Professor Amar, “To decide this question, the federal Ninth Circuit turned to the California Supreme Court. The Ninth Circuit asked the California justices whether, as a matter of California law, initiative sponsors can represent the state’s electorate when elected officials decline to defend.”
“Thursday, the California justices unanimously said ‘yes,’ essentially because it would make no sense for elected officials to have the power to let an initiative die for lack of a defense. The initiative device, after all, is supposed to be a check on elected officials,” the Professor writes.
The Professor believes that if the Ninth Circuit rules on the merits of Judge Walker’s ruling, and affirms it, that “the U.S. Supreme Court may have no choice but to take up the case.”
My own view is that this a good thing, on two grounds. First, I agree with Professor Amar, that the purpose of the initiative process is to act as a check on election officials, and that would not work if proponents had to rely on elected officials to defend their measures in court.
That issue is now put to rest and I think rightly so. I never believed the Attorney General or Governor to be compelled to defend measures that they believed unconstitutional, and now they do not have to.
Moreover, denial of standing would have likely doomed Proposition 8, but to what effect? It would have no standing over the rest of the nation. It would not advance the cause other than to allow same sex marriage in California – an important but small step in a long process.
Ultimately, the Supreme Court will have to rule on the constitutionality of laws such as these. The sooner the better, as far as I am concerned.
It is unclear whether a Proposition 8 would win in the future in California. Demographics are shifting and I believe it is only a matter of time before the majority, at least in states like California, support same sex marriage.
Recent polling shows that a narrow plurality of Californians now favor the right for same sex couples to marry, and three-quarters favor some kind of special legal status for such relationships.
These data suggest that gay rights supporters may simply be able to overturn Proposition 8 through a vote of the people.
Demographic shifts show that the oldest generations have the most resistance to same sex marriage, but as the demographics shift, younger people are strongly in favor of same sex marriage.
It is only a matter of time, at least in California, and probably the rest of the nation eventually, before there is a strong consensus for same sex marriage, which will render most of these fights moot.
In the meantime, for many this has been a long and tiresome fight, and all we can say is that time and history will be on their side. As Martin Luther King once said, “The arc of the moral universe is long but it bends toward justice.”
—David M. Greenwald reporting
The position outlined here by a unanimous CA Supreme Court clearly describes the nature of the CA legal system and constitution with regard to the importance it gives to the power of populist citizen voting rights. There is no way that a CA judge would deny giving an immediate court order to our City Council to recognize the validity of the rate hike citizen referendum and order it placed on the ballot according to the law.
[quote]It is only a matter of time, at least in California, and probably the rest of the nation eventually, before there is a strong consensus for same sex marriage, which will render most of these fights moot.[/quote]
The rest of the nation? I doubt it… you need to get out of the state more… go down South to the bible belt for instance…
davisite2 said . . .
[i]”The position outlined here by a unanimous CA Supreme Court clearly describes the nature of the CA legal system and constitution with regard to the importance it gives to the power of populist citizen voting rights.”[/i]
I could be wrong d2, but I believe you are reading way too much into this ruling. It hasn’t upheld the “tyranny of the majority” vote in Prop 8, but rather given a group “standing” that permits them to argue their case that the majority vote doesn’t violate the civil rights of Californians. Being able to argue your case does not in any way mean your argument will prevail when a decision is rendered.
davisite2 said . . .
“There is no way that a CA judge would deny giving an immediate court order to our City Council to recognize the validity of the rate hike citizen referendum and order it placed on the ballot according to the law.”
Again I could be wrong d2, but here too I believe you are reading way too much into the ruling, which would only give Harrington/Head et. al. “standing” in any court proceedings regarding the Davis Referendum.
With the above said, I reiterate my strong personal feelings that the Council would be doing the citizens of Davis a HUGE disservice if they do anything legal that prevents the Referendum from appearing on the June 5th ballot.
[quote]It hasn’t upheld the “tyranny of the majority” vote in Prop 8, but rather given a group “standing” that permits them to argue their case that the majority vote doesn’t violate the civil rights of Californians. Being able to argue your case does not in any way mean your argument will prevail when a decision is rendered. [/quote]
I agree with this assessment…
“I could be wrong d2,”
Matt… you misread my point on both counts. The ruling of the CA supreme court does not speak to the validity of Prop 8 in the Federal courts. What it does do, in its unanimous statement giving standing to this pro-prop 8 group which under ordinary circumstances would not be considered to have standing, is affirm the strength of populist voter rights in the CA constitution which cannot be trampled upon with impunity by anyone. In our case, with the very weak argument with no supporting case law questioning the legitimacy of the rate hike referendum, this strong affirmation of populist voter rights by the Supreme Court should make it very difficult for a lower court judge not to order the referendum to proceed and then let the city appeal.
davisite2 said . . .
[i]”Matt… you misread my point on both counts. The ruling of the CA supreme court does not speak to the validity of Prop 8 in the Federal courts. What it does do, in its unanimous statement giving standing to this pro-prop 8 group which under ordinary circumstances would not be considered to have standing, is affirm the strength of populist voter rights in the CA constitution which cannot be trampled upon with impunity by anyone.”[/i]
d2, you are confusing strength with standing. Strength can only come as a result of whatever argument is put forth by the populist Prop 8 group. The history of case law is littered with myriads of groups that had standing, but showed no strength in the arguments they put forth. Only time will tell if the populist Prop 8 group is strong or weak.
davisite2 said . . .
[i]”In our case, with the very weak argument with no supporting case law questioning the legitimacy of the rate hike referendum, this strong affirmation of populist voter rights by the Supreme Court should make it very difficult for a lower court judge not to order the referendum to proceed and then let the city appeal.”[/i]
Since no case has as yet been argued/presented by either party, your statement “with a very weak case” appears both premature and presumptuous to me.
With all the above said, I reiterate my strong personal feelings that the Council would be doing the citizens of Davis a HUGE disservice if they do anything legal that prevents the Referendum from appearing on the June 5th ballot.
Matt… I give up on this one.. it appears that you just don’t get the point that I am offering.
Moving on to another point:
* District of Alaska
* District of Arizona
* Central District of California
* Eastern District of California
* Northern District of California
* Southern District of California
* District of Hawaii
* District of Idaho
* District of Montana
* District of Nevada
* District of Oregon
* Eastern District of Washington
* Western District of Washington
It also has appellate jurisdiction over the following territorial courts:
* District Court of Guam
* District of the Northern Mariana Islands
Would Alaska, Montana, Nevada, Arizona, and the others in the ninth’s jurisdiction be subject to the 9th’s ruling concerning their position on the legitimacy of declaring, either constitutionally or by legislation, that marriage is between a man and a woman? If so, there will be a political firestorm for the ninth and probably the reason for the strategy that would have allowed the ninth to effectively strike down the constitutional prohibition against same sex marriage only in CA . Neutral legal scholars are now offering their opinion that it will be “AT LEAST five years” before the ninth district court would even consider venturing into this potential firestorm.
davisite2 said . . .
[i]”Matt… I give up on this one.. it appears that you just don’t get the point that I am offering.”[/i]
That makes sense, your point has good standing but no strength.
“The rest of the nation? I doubt it… you need to get out of the state more… go down South to the bible belt for instance… “
I suspect, barring federal intervention, the south at least the rural south will be the lone holdouts on same sex marriage in the next twenty years. Then again the south isn’t really part of this country anyway 😉
[quote]I suspect, barring federal intervention, the south at least the rural south will be the lone holdouts on same sex marriage in the next twenty years. Then again the south isn’t really part of this country anyway ;-)[/quote]
I’m from the South, and them’s fighten’ words! You clearly do not have a clue about the south…
Nor the Northeast for that matter!