California Court Says Same-Sex Marriage Foes May Defend Prop 8

Californians who oppose same-sex marriage just won a procedural victory in court.

The state’s Supreme Court ruled this hour that opponents of same-sex marriage who successfully pushed the Proposition 8 law that bans such unions in the state may defend the initiative in court. The court’s opinion is here.

The justices did not rule on the legality of same-sex marriage or on the merits of a federal judge’s ruling that Prop 8 is unconstitutional (the ruling that Prop 8 supporters want to challenge).

The state justices had only been asked by the federal Court of Appeals for the Ninth Circuit for an opinion on whether the initiative’s supporters have the “standing” to defend the law. The Prop 8 supporters want to take their case to the federal court because California Gov. Jerry Brown and other state officials have declined to defend the ban’s constitutionality.

In its ruling, the California court says:

“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. It would exalt form over substance to interpret California law in a manner that would permit these public officials to indirectly achieve such a result by denying the official initiative proponents the authority to step in to assert the state’s interest in the validity of the measure or to appeal a lower court judgment invalidating the measure when those public officials decline to assert that interest or to appeal an adverse judgment.”

As The Sacramento Bee‘s Capitol Alert says, “the state court can’t tell the federal court what to do, of course, but the federal court may consider the state court’s opinion when deciding who can defend it before the federal bench.”

And as ScotusBlog said in a preview of the decision, if the state court had gone the other way — and said that same-sex opponents had no standing to defend Prop 8 — that could have brought an abrupt end to efforts by the initiative’s proponents to defend it because the federal court could have then decided to cede to the California jurists’ opinion.

“Even though Prop. 8 was struck down as unconstitutional,” NPR’s Richard Gonzales has reported, “it remains in effect while it moves through the appeals process.”

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