California Supreme Court Grants Standing in Prop 8 Case to Opponents of Same-Sex Marriage


The California Supreme Court ruled today that opponents who sued to appeal U.S. District Judge Vaughn Walker’s 2010 ruling, which found Prop 8 to be unconstitutional, have “standing” to do so. Walker’s ruling in the case Perry v. Schwarzenegger would have, effectively, allowed same-sex marriages to be legal once again in California. When the plaintiffs in the case (then California Governor Arnold Schwarzenegger and then Attorney General and current Governor Jerry Brown) declined to appeal the decision, others wanted to step in and appeal on behalf of all the Californians they thought would be harmed by the gays getting hitched. The federal court asked that the state supreme court weigh in on if they even had the right to do so.

Apparently, the California high court thinks so. From the decision:

[I]n the past official proponents of initiative measures in California have uniformly been permitted to participate as parties either as interveners or as real parties in interest in numerous lawsuits inCalifornia courts challenging the validity of the initiative measure the proponents sponsored. Such participation has routinely been permitted (1) without any inquiry into or showing that the proponents’ own property, liberty, or other personal legally protected interests would be specially affected by invalidation of the measure, and (2) whether or not the government officials who ordinarily defend a challenged enactment were also defending the measure in the proceeding.This court, however, has not previously had occasion fully to explain the basis upon which an official initiative proponent’s ability to participate as a party in such litigation rests.

From the conclusion, signed by seven of the court’s judges:

In response to the question submitted by the Ninth Circuit, we conclude, forthe reasons discussed above, that when the public officials who ordinarily defend achallenged state law or appeal a judgment invalidating the law decline to do so,under article II, section 8 of the California Constitution and the relevant provisionsof the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.

Immediate reactions are mixed. Joe My God was pessimistic:

Americans for Equal Rights (AFER), the legal group that brought the lawsuit, put the best spin on getting the case back into federal court:

Meanwhile, NOM hasn’t tweeted about a decision that largely finds in their favor, last tweeting something incoherent about polygamy:

Update: Here’s an interesting point from Patrick Connors, the bearer of one of the bestest ever twitter handles:

California ballot initiatives are strange beasts, with legal parameters not applicable in much of the rest of the country. This ruling could make them even stranger.

Here’s Marriage Equality New York’s positive spin:


The California’s Supreme Court’s decision today is advisory only. This means it is not binding on the 9th Circuit Court of Appeals which will make it’s own decision on “Protect Marriage’s” standing as well as Proposition 8’s constitutionality in due time. It is a “this is what we think” opinion. However, by many legal experts, this opinion is highly influential as the 9th Circuit is very likely to mirror the California Supreme Court’s opinion.


The case will now be decided by the 9th Circuit and then presumably by most accounts appealed to the US Supreme Court over the next few years. During this time, the ban against gay marriages in California remains.


In August 2010, Justice Vaughan Walker of the US District Court of California, a federal court, in a historic decision, struck down Proposition 8 ruling it unconstitutional on both due process and equal protection grounds and ordered the immediate resumption of gay marriages in California. During the appeal of Judge Walker’s ruling, the California Supreme Court was asked to decide if “Protect Marriage” had the right to to defend Proposition 8 – a role normally filled by state officials.

MENY will continue to work with our California and national partners on the ground to support the repeal of Proposition 8 and to keep you informed as this process continues. While the road to equality may be long, you have shown here in New York that it can and will be successful!

Here’s the full decision:

Court ruling Prop 8 defense by Jeremy Hooper on Scribd

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