California Supreme Court reenters Proposition 8 fray

The California Supreme Court’s decision Wednesday to take up a key question in the fight over Proposition 8 places the court once again at the forefront of the legal battle over same-sex marriage.

The court, meeting in closed session at its San Francisco headquarters, decided unanimously to rule on whether sponsors of ballot initiatives have special authority under state law to defend the measures in court when state officials refuse to do so.

Last month, the U.S. 9th Circuit Court of Appeals, which is considering a federal judge’s ruling that struck down Proposition 8, had asked California’s high court to decide the state legal question. The court’s answer probably will determine whether Proposition 8 is overturned on narrow, procedural grounds with limited impact or whether the case reaches the U.S. Supreme Court on constitutional questions that could affect same-sex marriage laws throughout the country.


The California Supreme Court’s order Wednesday set an expedited briefing schedule for a hearing that may be held “as early as September.” That means a decision probably would not come until the end of the year, a timetable that challengers of Proposition 8 immediately asked the court to accelerate.

The state court has been deferential to ballot measures in the past, and both conservative and liberal groups are expected to urge the justices to give initiative sponsors special legal status.

The announcement was the latest twist in a long, complex legal path for the state’s ban on same-sex marriage. In May 2008, the California Supreme Court ruled 4-3 to overturn the ban on grounds that it violated the rights of gays and lesbians. Voters reinstated the ban six months later by passing Proposition 8, which amended the state Constitution. The state high court upheld the initiative 6-1. The battle then shifted to federal court, where U.S. District Judge Vaughn R. Walker ruled that the ballot measure was unconstitutional.

When the 9th Circuit heard arguments in the Proposition 8 case in December, a majority of the three-judge panel appeared to believe that the ballot measure violated the federal Constitution. But the panel also suggested that the case could be decided on a procedural issue. Then-Gov. Arnold Schwarzenegger and then-Atty. Gen. Jerry Brown had both declined to appeal Walker’s ruling, and in their absence it was unclear if any party had the legal authority to pursue an appeal, they said.

ProtectMarriage, the group that had sponsored Proposition 8, has tried to appeal Walker’s ruling, but the judges said it was unclear whether the group had the legal status, known as standing, to do so. Last month, they asked the California high court to advise them on what the group’s authority was under state law.

Gay rights lawyers would like a ruling ending same-sex marriage bans as unconstitutional. But they have indicated they would be happy to accept a more narrow victory that would overturn Proposition 8 on procedural grounds. That would avoid a risky showdown at the U.S. Supreme Court.

Lawyers for two same-sex couples who challenged Proposition 8 had urged the California Supreme Court to refrain from entering the case.

“We are confident that the California Supreme Court will conclude that initiative sponsors do not have the right to override our elected leaders and independently defend an initiative,” Kate Kendell, head of the National Center for Lesbian Rights, said after the state court’s vote.

Lawyers for Proposition 8 have urged the state court to rule that initiative sponsors do have that legal authority. “Surely the momentous issue of Proposition 8’s validity under the federal Constitution should not be determined by an unreviewed trial court decision,” ProtectMarriage argued to the state high court.

Another complication in the case is that for separate procedural reasons, Walker’s ruling invalidating Proposition 8 might be deemed to apply only in the two counties, Los Angeles and Alameda, that were named as defendants in the lawsuit challenging the initiative.

In asking the California Supreme Court for clarification, 9th Circuit Judge Stephen Reinhardt said in a concurrence that “the consequences are unclear” for Proposition 8 if the appeal must be dismissed for procedural reasons.

Walker’s order “determines only that Proposition 8 may not be enforced in two of California’s 58 counties,” Reinhardt wrote.

A gay rights group in Los Angeles hired Theodore B. Olson and David Boies, legal luminaries from opposite sides of the political spectrum, to challenge Proposition 8. They maintain that if the appeal were dismissed, Walker’s ruling would end Proposition 8 statewide, even if doing so required special directives from state officials.