The status of the appeal from the judgment striking down California’s Proposition 8, the initiative banning same-sex marriage, has been in doubt since last January, when the Ninth Circuit certified to the California Supreme Court the question of whether the Prop 8 proponents had standing to defend the initiative where the California attorney general refused to do so. More specifically, the question certified was:
Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, theofficial proponents of an initiative measure possesseither a particularized interest in the initiative’s validity or the authority to assert the State’s interestin the initiative’s validity, which would enable themto defend the constitutionality of the initiative uponits adoption or appeal a judgment invalidating the initiative, when the public officials charged with thatduty refuse to do so.
The California Supreme Court’s much-anticipated opinion was filed this morning. The court unanimously found that the Prop 8 proponents have standing to defend the law:
In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state‘s interest in the initiative‘s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.
My initial impressions are simply to note the differences in the opinion and in the concurring opinion of Justice Kennard. Whereas the unanimous opinion goes out of its way to emphasize that the question is one to be answered without regard to the particular law to be defended by its proponents, Justice Kennard’s concurring opinion give a detailed history of California litigation over the same-sex marriage issue.
