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Plaintiffs have standing, courts says. Case can go forward and may well end up before the U.S. Supreme Court.
BY BRIAN FRAGA
SACRAMENTO — Opponents of same-sex “marriage” in California gained a legal victory in their ongoing battle to uphold Proposition 8.
That’s the referendum passed by the state’s voters in 2008 that defines marriage as a union between one man and one woman.
The California Supreme Court’s Nov. 17 decision that the plaintiffs in Perry v. Brown/Coleman v. Brown have legal standing to defend Prop. 8, ruled unconstitutional last year by a U.S. District Court judge in San Francisco, represents a significant step in an ongoing legal battle that many experts predict will ultimately reach the U.S. Supreme Court.
“The decision ensures that Prop. 8 will have a full defense all the way to the United States Supreme Court, where we believe we are going to prevail,” said Andy Pugno, general counsel for Protect Marriage Now, one of the plaintiffs fighting to defend Prop. 8’s constitutionality.
Pugno said the California Supreme Court’s decision was “an important affirmation” of that state’s referendum process.
“This reminds the courts that all political power goes back to the people and that it cannot be thwarted by a government official,” Pugno said.
California’s former governor, Arnold Schwarzenegger, and then-Attorney General Jerry Brown, the current governor, refused to defend Prop. 8 after federal Judge Vaughn Walker ruled last year that the measure violated the civil-rights of homosexual Californians.
Voters passed Prop. 8 six months after the state’s Supreme Court invalidated a 2000 law that banned same-sex “marriage.”
Carol Hogan, communications director for the California Catholic Conference, said the state Supreme Court “strangely” did not stay its May 2008 ruling until after the elections six months later.
“They opened the possibility of same-sex couples being married for about five months, until the referendum, which added great distress and chaos for all the people involved,” Hogan said.
Following Walker’s 2010 ruling, the Protect Marriage Now coalition of religious organizations and traditional family-values groups, including the California Catholic Conference, stepped in to defend Prop. 8, raising the question in the 9th Circuit Court of Appeals as to whether the plaintiffs had the legal right to argue for a law that the state’s top government officials declined to defend.
The 9th Circuit Court of Appeals, which is considering the appeal, asked the California state Supreme Court for guidance. The Golden State’s high court responded with a 61-page opinion. It concluded that denying proposition advocates the right to defend laws passed by referendum would grant the governor and attorney general de-facto veto power over laws they disagreed with, thus undermining the citizens’ right to pass laws.
“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,” wrote California Supreme Court Judge Tani Cantil-Sakauye.
Though not binding on the federal level, the state court’s decision is expected to have significant bearing in the 9th Circuit, which has since ordered both parties in the case to file supplemental briefs by Dec. 2, with no replies or further briefings permitted. Legal experts say that order indicates that the three-judge panel plans to proceed quickly.
Legal journalist Lyle Denniston wrote on the Supreme Court of the United States’ Blog that the briefing order may also be an indication that the “Circuit court itself is not yet convinced that the standing issue before it has been settled conclusively.”
In a conference call after the latest court ruling, attorney Ted Olson, the former U.S. solicitor general, who represented the original plaintiffs who successfully challenged the constitutionality of Prop. 8, told reporters that the standing issue “is still in the case,” hinting that the U.S. Supreme Court could still refuse to take up the matter.
Pugno told the Register that the 9th Circuit asked for the California Supreme Court’s input with the commitment to follow the state court’s guidance. In his view, the ruling dealt a crippling blow to the legal strategy employed by Prop. 8’s opponents.
“This was an enormous lift to the defense of Prop. 8 because part of the strategy against Prop. 8 in the 9th Circuit was to not have anyone defending the law. Without any opposition, the case could have ended there,” Pugno said.
The California Catholic Conference, the official public-policy arm of the state’s bishops, welcomed the ruling and issued a statement that upheld the California voters’ decision to pass Prop. 8: “By their vote, they recognized that marriage is good for children and best for our state.”
As to what the 9th Circuit may decide, Pugno expects the current panel — headed by Judge Stephen Reinhardt, a former Los Angeles lawyer known for having liberal views — will likely uphold Judge Walker’s finding.
“It would not be surprising for the 9th Circuit to side with the same-sex ‘marriage’ advocates,” Pugno said.
“We fully expect the 9th Circuit, the most overturned court in America, to invalidate Prop. 8, finding some phony right to same-sex ‘marriage’ in the U.S. Constitution. However, once this case gets out of San Francisco and reaches the U.S. Supreme Court, we fully expect to be victorious,” said Brian Brown, president of the National Organization for Marriage.
Ted Olson, for his part, remains hopeful that the 9th Circuit will uphold the rights of homosexuals to marry.
“We are very hopeful for a relatively prompt 9th Circuit decision vindicating the rights of gays and lesbians under the U.S. Constitution,” Olson said in a conference call with reporters.
Meanwhile, also pending before the 9th Circuit is a related case in which Protect Marriage Now is appealing another judge’s refusal to vacate Judge Walker’s decision based on his sexual orientation. Judge Walker, who has since retired, is an active homosexual in a long-term same-sex relationship. Pugno said he failed to disclose that during last year’s trial and that he thus should have recused himself.
Hogan said she does not expect the 9th Circuit to issue a ruling until early 2012.
However the 9th Circuit rules, the constitutionality of Prop. 8 and the attendant question of whether same-sex couples should have the right to “marry” will likely end up before the U.S. Supreme Court, but probably not until 2013, at the earliest.
Joe Solmonese, president of the Human Rights Campaign, which advocates for homosexual causes, expressed optimism that the legal hurdles to same-sex “marriage” would soon be overturned: “With today’s decision, the case challenging Prop. 8 returns to federal court, and we are one more step closer to ending discrimination against loving California couples. Thousands of California families remain in legal limbo, and we urge the 9th Circuit to quickly issue its decision.”
Pugno, however, argues said the law is on his side.
“The current Supreme Court precedent is that there is no fundamental constitutional right to same-sex ‘marriage,’” he said. “To strike down an individual state’s law like Prop. 8 they would have to reverse a longstanding legal precedent in the United States.”
Register correspondent Brian Fraga writes from New Bedford, Massachusetts.