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Religious Tolerance logo

Perry v. Schwarzenegger: California lawsuit to
challenge constitutionality of Prop. 8 which banned SSMs

2011-SEP: Hearing at the California Supreme
Court to determine
's status

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Continued from a previous essay.

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2011-SEP-06: Hearing before the California Supreme Court:

The Alliance Defense Fund (ADF), a fundamentalist Christian legal advocacy group, forms part of the's legal team. Austin R. Nimocks, ADF senior legal counsel, issued a statement saying:

"Voters should not be left without any defense just because their officials refused to defend them. ... Because the people of California have a right to be defended, the official proponents of Proposition 8 need to be allowed to step in and defend California’s marriage amendment. Otherwise, state officials will succeed in indirectly invalidating a measure that they had no power to strike down directly." 1

The California Supreme Court has been asked to answer the question:

"Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so." 1

Nimocks explained:

"... ultimately, this hearing concerns whether the people of California who voted for Proposition 8 will be defended at all."

Perhaps a more valid question would be whether the people of California, as they exist in the fall of 2011 -- of whom a majority apparently support SSM, -- should see Proposition 8 upheld against their will.

The Los Angeles Times reported:

"If the court rules against the initiative backers, then a federal appeals court is more likely to rule that, the sponsor of Proposition 8, also lacks standing under federal law and 'Proposition 8 dies because no one will defend it,' said Vikram Amar, UC Davis constitutional law professor.

'I don't think it is open-and-shut either way,' Amar said. 'If sponsors of initiatives don't have standing, then you have the possibility that elected officials like governors and attorneys general can essentially undo an initiative by refusing to defend it.'

On the other hand, giving initiative sponsors the right to defend their measures when state officials refuse is also problematic, he said.

'Just because someone sponsors an initiative doesn't mean they are good representatives of the voters, because the voters never chose the sponsors,' he said. 2

Gay rights groups want the state high court to deny standing to backers of ballot measures. That could avoid a constitutional showdown on Proposition 8 that gays might lose before the U.S. Supreme Court.

The League of Women Voters has urged the California court to deny standing to initiative sponsors, as has ... [Attorney General] Kamala Harris.

But several others groups, including some that have sponsored initiatives, have called on the court to protect the initiative process by ensuring that elected officials cannot override the will of the voters.

Gerald Uelmen, Santa Clara University professor and expert on the state Supreme Court, noted that the California high court has long given initiatives 'an exalted' status and would be unlikely to permit initiatives to be overturned simply because state elected officials refused to defend them.

The current court, which is moderately conservative, 'hasn't put any reasonable limits' on initiatives and gives them 'every benefit of every doubt,' Uelmen said.

From the court's perspective, 'it would just be unacceptable to permit a total nullification of an initiative by virtue of the attorney general's refusal to defend it,' he said."

At the hearing, which lasted about an hour:

  • Lawyer Charles Cooper represented He stated that the Court has a duty to protect the people's initiative power. This includes the right of the Proposition's proponents to defend it if nobody else will.

  • Lawyer Theodore Olson, representing the American Foundation for Equal Rights said that there is "... nothing in the California Constitution or statutes" that gives private citizens the right to take over the job of the attorney general or other state officials in such matters. He said that citizens have the power to propose and pass initiatives, but not the power to enforce or defend them. When he was asked whether this meant that "no one can defend" an initiative if the state officials do not, he answered "yes."

Associate Justice Joyce L. Kennard, said that if the court agreed with Mr. Olson, then "It would appear to me [that] would nullify the great power that the people have reserved for themselves" to propose and enact an initiative.

Chief Justice Tani Cantil-Sakauye said that if state officials refuse to defend an initiative, "... what happens to the state’s interest? ... Does it evaporate?"

Associate Justice Ming W. Chin asked Mr. Olson: "You want the federal courts to answer this question with only one side represented?"

Richard Gonzales of National Public Radio commented before the hearing:

"But a group of non-elected individuals can’t represent the State says attorney 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 [before the District Court], 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'." 4

The Washington Times reported that:

"Mr. Cooper countered that Prop 8 supporters should have standing, since the power to propose and pass an initiative would be 'nullified' if state officials refused to defend it, and initiative proponents were blocked from defending it in court. That would be the 'injury,' Mr. Cooper said, in response to sharp questions about who would be harmed if courts did not rule his way." 5

Ari Ezra Waldman, webmaster of "Towleroad, a site with homosexual tendencies" commented on the hearing and predicts its outcome and impact:

"The at-times testy hearing saw tough questioning from the bench of both attorneys. Even the supposedly 'liberal' justices went after Mr. Olson and had particular difficulty with his views on the scope of the initiative power. Mr. Cooper seems to have fared worse: all but one justice asked questions deeply skeptical of his broad standing argument. Then again, how judges ask their questions often has little to do with their ultimate decision.

There are two take-aways from today's hearing:

First, this stage of the Prop 8 federal litigation is not about gays, equal protection or even marriage. The only issue before the California Supreme Court is whether under state law, initiative proponents have the power to defend the initiative they proposed when the arms of the State -- the governor and attorney general -- decline to defend it. Therefore, today's argument was about the scope of the initiative power, the state's intervention policies and how best to protect both.

Second, nothing that happened today changes my view that while certifying the question was not an exercise in futility, regardless of the court's decision, standing as a matter of federal law will still have to be determined by the Ninth Circuit. And, on that issue, 'Protect Marriage' will lose. ..."

"... the power to represent the state persuant to state law may be a necessary prerequisite of federal standing, but it is woefully insufficient. For federal standing, you have to show a clear and specific harm caused by an adverse ruling. That requirement, over and above California's intervention rules whatever they may be, will likely doom 'Protect Marriage'. ..."

"Next, we wait. We wait for a decision from the California Supreme Court, which should take under 90 days. At that point, the decision will go back to the [federal] Ninth Circuit [Court of Appeals], which will take it under advisement for its decision. It is possible that the Ninth Circuit will order a rehearing given what it learned, but if the California [Supreme] court simply reiterates its liberal intervention norms, there will be no need for a rehearing. Standing should be denied for failure to show specific harm caused by the overturning of Prop 8 below. It is hard to say how long the Ninth Circuit will take to render that decision, but assuming we do not hear from the California Supreme Court before December, the Ninth Circuit panel may rule in March 2012." 6

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2011-NOV-17: Supreme Court rules in favor of Prop. 8 sponsors:

Responding to the request of the U.S. 9th Circuit Court of Appeals, the California Supreme Court ruled that sponsors of ballot measures in the state had the right to defend them in court if the state refuses to do so. 7

Chief Justice Tani Cantil-Sakueye wrote:

"The resolution of this procedural question does not turn on the substance of the particular initiative measure at issue, but rather on the purpose and integrity of the initiative process itself." 8

The conclusion of the ruling is:

Prop 8 ruling 8

It is difficult to see how the court could have ruled otherwise. To not recognize the standing of the sponsors would mean that any citizen initiative that as passed by the voters but disliked by the current government could be overruled by the latter.

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This topic continues

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References used:

 The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Nathan Black, "Can Prop. 8 Proponents Defend Measure? Calif. Supreme Court to Decide," The Christian Post, 2011-SEP-06, at:
  2. "California Supreme Court to hear key gay marriage arguments," Los Angeles Times, 2011-SEP-06, at:
  3. Adam Bink, "Today’s California Supreme Court hearing on standing: pre-hearing thread," Prop 8 Trial Tracker, 2011-SEP-06, at:
  4. Richard Gonzales, "California Same-Sex Marriage Ban Returns To Court," National Public Radio, 2011-SEP-06, at:
  5. Cheryl Wetzstein, "Prop 8 hearing weighs backers’ standing. Gay-marriage foes want day in court," The Washington Times, 2011-SEP-06, at:
  6. Ari Ezra Waldman, "Prop 8: Standing and initative power -- California Supreme Court hearing analysis," Towleroad.2011-SEP-06, at:
  7. "Prop. 8 sponsors are legally entitled to defend measure, court rules," LA Times, 2011-NOV-17, at:
  8. Text of the California Supreme Court decision Perry v. Brown, 2011-NOV-17, at:

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Home page > "Hot" topics > Homosexuality > Couples > California > Prop 8 > here

Copyright © 2011 by Ontario Consultants on Religious Tolerance
Original posting: 2011-JUL-31
Latest update: 2011-NOV-18
Author: B.A. Robinson

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