California Same-Sex Marriage Ban Returns To Court

Sep 6, 2011
Originally published on September 6, 2011 1:13 pm

The latest round in the legal battle over same sex marriage will be fought Tuesday in a hearing before the California State Supreme Court.

The arguments will focus not so much on same-sex marriage itself, but on Proposition 8, the voter-approved initiative banning such marriages. A federal judge has ruled Prop. 8 unconstitutional and the issue before the court on Tuesday is whether proponents of the initiative have the legal authority, or standing, to pursue an appeal.

After Federal Judge Vaughn Walker struck down Prop. 8 last year, proponents wasted no time in taking their case to the U.S. Ninth Circuit Court of Appeals.

But a three-judge panel said that even before it could consider any constitutional issues, it first needed to be sure that Prop. 8 proponents have legal standing. So, they punted the issue over to the California State Supreme Court asking for guidance on this question: Do the sponsors of a voter initiative have the right under California law to defend it in court?

Andrew Pugno, general counsel for ProtectMarriage.com and a proponent of the same-sex marriage ban, says yes.

"They are the very best suited individuals to stand in for the people who by majority vote exercised their right to pass a Constitutional amendment by initiative and somebody has to be authorized defend it, and who better than the official proponents?" Pugno says.

This question of legal standing arises because former Gov. Arnold Schwarzenegger and former Attorney General Jerry Brown — who is now the governor — both declined to defend the voter approved initiative.

"Essentially the governor and attorney general would be exercising a veto over the people's vote if they are able to essentially allow an initiative to be nullified simply by standing back and doing nothing when its challenged," Pugno says.

But a group of non-elected individuals can't represent the State says a ttorney Theodore Olson, who will argue Tuesday before the California Supreme Court.

"Simply because they were proponents, or they raised money or supported or financed advertising for Proposition 8, they don't have the right to substitute themselves for the constitutional official In California that does have that right under the California constitution," Olson says.

Olson will argue that to have legal standing the proponents have to show that they would suffer a direct harm if Prop. 8 is held to be unconstitutional.

"Here, the proponents were asked during the course of the trial, what damage would be done to heterosexual marriage if Proposition 8 was held to be unconstitutional and the lawyer for the Proposition 8 proponents said 'I don't know,'" Olson says. "You have to have a direct stake in the matter that's being litigated."

Legal precedent under state law is murky, says University of California, Davis law professor Vikram Amar. The proponents of Prop. 8 were allowed to intervene when their initiative was challenged in state court. But Amar says up until now there have been no hard and fast rules.

"Putting aside the politically charged nature of Prop. 8, they're going to be deciding something that governs initiatives more generally," Amar says. "And they have latitude, I think, to do that without too many handcuffs on them right now."

The State Supreme Court's decision is likely to influence the Ninth Circuit Court of Appeals, says Marc Spindelman.

"If the California Supreme Court says there is no standing under state law, the Ninth Circuit won't go on, presumably, to reach the merits of the case," says Spindelman, who is a professor at the Moritz College of Law at Ohio State.

The California Supreme Court's decision is expected within 90 days.

If the court rules that Prop. 8 supporters don't have standing, Judge Walker's decision that California's ban on same-sex marriage is unconstitutional would likely survive. That would throw the issue of same-sex marriage back to the Ninth Circuit Court of Appeals. So it's difficult to say if or when same-sex marriages would ever resume in California.

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STEVE INSKEEP, host:

And let's go next to California, where the state Supreme Court considers gay marriage. Voters there banned same-sex marriage in the 2008 election. A federal judge overturned the ban; then, federal courts asked for a judgment from the state's highest court on this case. NPR's Richard Gonzales reports.

RICHARD GONZALES: After federal judge Vaughn Walker struck down Prop. 8 a year ago, proponents wasted no time in taking their case to the U.S. Ninth Circuit Court of Appeals. But a three-judge panel said that even before it could consider any constitutional issues, it first needed to be sure that Prop. 8 proponents have legal standing. And they punted the issue over to the California State Supreme Court, asking for guidance on this question: do the sponsors of a voter initiative have the right, under California law, to defend it in court?

Andrew Pugno, general counsel for ProtectMarriage.com and a proponent of the same-sex marriage ban, says yes.

Mr. ANDREW PUGNO (ProtectMarriage.com): They are the very best suited individuals to stand in for the people, who by majority vote exercised their right to pass a constitutional amendment by initiative. And somebody has to be authorized to defend it, and who better than the official proponents?

GONZALES: This question of legal standing arises because the former governor, Arnold Schwarzenegger and the former attorney general, now governor Jerry Brown, both declined to defend the voter-approved initiative.

Andrew Pugno.

Mr. PUGNO: Essentially the governor and attorney general would be exercising a veto over the people's vote if they are able to essentially allow an initiative to be nullified, simply by standing back and doing nothing when it's challenged.

GONZALES: But a group of non-elected individuals can't represent the state, says attorney Theodore Olson, who will argue today before the California Supreme Court.

Mr. THEODORE OLSON (Attorney): Simply because they were proponents, or they raised money, or supported, or financed advertising for Proposition 8, don't have the right to substitute themselves for the constitutional official in California that does have that right under the California constitution.

GONZALES: Olson will argue that to have legal standing, the proponents have to show that they would suffer a direct harm if Prop. 8 is held to be unconstitutional.

Mr. OLSON: Here the proponents were asked during the course of the trial, what damage would be done to heterosexual marriage if Proposition 8 was held to be unconstitutional, and the lawyer for the Proposition 8 proponents said I don't know. You have to have a direct stake in the matter that's being litigated.

GONZALES: Legal precedent under state law is murky, says UC Davis law professor Vik Amar. The proponents of Prop. 8 were allowed to intervene when their initiative was challenged in state court. But Amar says, up until now, there have been no hard and fast rules.

Mr. VIK AMAR (University California-Davis School of Law): Putting aside the politically charged nature of Prop. 8, they're going to be deciding something that governs initiatives more generally. And they have latitude, I think, to do that without too many handcuffs on them right now.

GONZALES: The state Supreme Court's decision is likely to influence the Ninth Circuit Court of Appeals, says Marc Spindelman. He's a professor at the Moritz College of Law at Ohio State.

Mr. MARC SPINDELMAN (Moritz College of Law at Ohio State): If the California Supreme Court says there is no standing under state law, the Ninth Circuit won't go on, presumably, to reach the merits of the case.

GONZALES: The state Supreme Court's decision is expected within 90 days. If the Court rules that Prop. 8 supporters don't have standing, Judge Walker's decision that California's ban on same-sex marriage is unconstitutional would likely survive. That would throw the issue of same-sex marriage back to the Ninth Circuit Court of Appeals. So it's difficult to say if or when same-sex marriages would ever resume in California.

Richard Gonzales, NPR News, San Francisco. Transcript provided by NPR, Copyright NPR.