Same-Sex Marriage Case Marches On

Demonstration outside state Supreme Court in 2010

The head-on federal constitutional challenge to California’s voter-approved ban on same-sex marriage goes back to a federal appeals court.  The California Supreme Court decided Thursday that sponsors of the ban may stand in the place of the state Attorney General and Governor who chose not to defend the law from constitutional attack.

The ruling was a procedural side step in the march to the main event, but a significant test of the power of private groups to defend a voter measure from attack even when the state will not.

The decision was unanimous.  As the justices were quick to point out the issue may arise in any initiative challenge no matter what the subject matter.

They did not rule on the constitutionality of the initiative in this round, only the ability of sponsors to defend the law.

The question first arose after former Chief U.S. District Judge Vaughn Walker ruled in August 2010 that Prop. 8 discriminated  on the basis of sexual orientation and gender.  He struck down the law, making same-sex marriages legal.  Then Gov. Arnold Schwarzenegger  and former Attorney General Jerry Brown declined to appeal the decision.  This left only the measure’s sponsors to challenge the decision in the 9th U.S. Circuit Court of Appeals.  But the federal appeals panel asked California’s high court if the sponsors had the right to step in for the state under state law.

The justices pointed to California’s century old initiative power stating the people have the right to adopt laws that elected officials refuse to embrace.

Because public officials who ordinarily defend a challenged state lw in court may not, California courts “have routinely permitted the official proponents af an initiative to intervene or appear as real parties in interest to defend a challenged voter-approved initiative measure.”

It is in effect a measure to guard the public’s right to exercise their initiative power, according to the court.

Chief Justice Tani Cantil-Sakauye wrote the unanimous 72-page decision.

Case.  Perry v. Brown, No.  S189476

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