Proposition 8

by Jeremy Leaming

As noted here yesterday Ninth Circuit Court of Appeals Judge Stephen Reinhardt wrote in Perry v. Brown that the state of California had no reason to strip from lesbians and gay men the right to wed. It was a classification of a group of people for apparently hostile reasons that doomed the rabidly anti-gay ballot measure, Proposition 8.

The writer and law professor Garrett Epps provides for The American Prospect, not surprisingly, a clearer understanding of Reinhardt’s opinion, which many pundits suggest could, if not likely, reach the Supreme Court.

Epps notes that Reinhardt (pictured) is a “last great liberal lion of a once-numerous pride,” who has authored “dozens of decisions that embody old-style judicial liberalism (including one that terminally ill individuals have a right to seek medical assistance in suicide).”

But in this case that lion, Epps says, has crafted an opinion that may have a longer “shelf-life” than many of his other decisions. For the opinion, did not sweepingly find that gays have a fundamental right to marry. As ACSblog noted, Reinhardt was focused on the targeting of a group of people for ill treatment, rather like the matter that resulted in the Supreme Court’s 1996 opinion in Romer v. Evans, where Justice Anthony Kennedy led a majority in finding unconstitutional Colorado’s noxious Amendment 2, a voter passed measure altering the state constitution to prohibit localities from enacting policy protecting lesbians and gay men from discrimination.

Epps says in his latest opinion, Reinhardt may have been itching to roar – “to say something broader about human dignity and the essential worth of gays and lesbians.”

By Courtney Joslin, a professor at UC Davis School of Law

Last week, the California Supreme Court again waded into the issue of marriage for same-sex couples. The California Supreme Court issued an advisory opinion explaining the rights under California state law of the official initiative Proponents to defend the measure in court when state officials decline to do so. What is the impact of the court’s opinion on the pending Perry v. Brown litigation and where does the case go from here?

Standing

In May 2009, two same-sex couples sued various California officials in federal district court challenging California’s same-sex marriage ban – Proposition 8 – under the U.S. Constitution. All of the state officials refused to defend Prop 8 (although the Attorney General was the only named defendant to argue affirmatively that Prop 8 is unconstitutional). When the official Proponents of Prop 8 sought to intervene in the litigation, no party opposed their intervention, and the court granted the motion. The Proponents were the only parties who defended Prop 8 in the district court.

In August 2010, federal district judge Vaughn Walker ruled that Prop 8 violated the U.S. Constitution. The Prop 8 proponents appealed this decision; no state official sought further review. Commentators and the Ninth Circuit itself questioned whether the Proponents had standing to appeal the decision in the absence of the state defendants. Although the U.S. Supreme Court has not definitively resolved the issue, there is language in prior Supreme Court decisions suggesting that the standing of ballot initiative proponents may turn on their rights under state law. Accordingly, after oral argument, the Ninth Circuit certified the following question to the California Supreme Court: “[w]hether 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 validity[.]”

On November 17, 2011, the California Supreme Court unanimously answered the question in the affirmative. This conclusion, the court explained, was necessary to protect the integrity of the initiative process. A contrary result, the court said, would permit government officials indirectly to “veto or invalidate an initiative measure that has been approved by the voters.”

The California Supreme Court’s conclusion that the proponents would be permitted to defend the measure in state court was not surprising to anyone who had been following the case. What was at least somewhat surprising, however, was the fact that the court not only purported to explain the rights of ballot initiative sponsors as a matter of state law, but that it went further and offered its assessment of whether they had standing as a matter of federal law. In its analysis, the California Supreme Court assumed that Supreme Court case law addressing the standing of legislative leaders is equally applicable to initiative sponsors; that is, that initiative sponsors have Article III standing if state law authorizes them to represent or act on behalf of the state’s interest.