California's Prop. 8 Moves Closer to a Showdown in U.S. Supreme Court

Prop 8 Protests Supreme Court California - H 2011
Justin Sullivan/Getty Images

Prop 8 Protests Supreme Court California - H 2011

Rob Reiner and David Geffen are among the industry players lending talent and money in the battle to overturn the initiative.

The California Supreme Court ruled Thursday that supporters of Proposition 8, the anti-marriage equality measure, are legally entitled to defend the ballot measure in court because the governor and state attorney general declined to do so.

The ballot initiative has become one of Hollywood's top causes with industry members giving talent and money in the battle to overturn it, including Rob Reiner, David Geffen, Steve Bing, Morgan Freeman and Ellen Barkin. The American Foundation for Equal Rights, led by board president and Hollywood political consultant Chad Griffin, is the sponsor of the federal court challenge to the proposition.

The state court’s decision sends the case back to the U.S. Ninth Circuit Court of Appeals, which now must decide whether Prop. 8 violates the equal protection clause of the U.S. Constitution. Since the issue already has been briefed and argued to the court, a ruling should come relatively soon. Whether the appellate justices decide for or against the initiative, their ruling is expected to be appealed to the U.S. Supreme Court.

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"Our plaintiffs are thrilled to be back into federal court, back on the fast track and headed to a place where these loving couples…can have the freedom to marry," said Chad Griffin, the board president of the American Foundation for Equal Rights.

If the high court accepts the appeal, which most legal observers expect it to do, a variety of outcomes are possible. Even if the justices sustain the constitutionality of Prop 8, a narrowly drawn decision probably would leave the states free to decide on the legality of marriage equality on a state-by-state basis.

The 2008 anti-marriage equality measure has worked a tortured course through the electoral and legal process. It was drafted to overturn an earlier ruling by the California Supreme Court, acknowledging that same-sex couples have a constitutional right to marry.

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After its passage, pro-marriage equality opponents of Prop. 8 sued in federal court, alleging that the state measure violated the federal Constitutional rights of gays and lesbians. U.S. Judge Vaughn Walker agreed and, in 2010, overturned the initiative. When the governor and state attorney general declined to appeal his ruling, the measure’s backers took up the cause and asked the Ninth Circuit to strike down Walker’s decision.

Before handing down a decision on the trial court’s ruling, however, the Ninth Circuit asked the state’s high court to decide whether the proposition’s supporters had legal standing to defend the measure. With that question resolved, the appellate court now is free to move forward, and the consensus among legal analysts is that they’re likely to sustain Walker’s ruling overturning Prop. 8. 

The California Supreme Court’s unanimous opinion was written by Chief Justice Tani Cantil-Sakauye. "The inability of the official proponents of an initiative measure to appeal a trial court judgment invalidating the measure, when the public officials who ordinarily would file such an appeal decline to do so,” she wrote, “would significantly undermine the initiative power.

“It has been nothing short of shameful to see Governor Jerry Brown, his predecessor Arnold Schwarzenegger and Attorney General Kamala Harris abdicate their constitutional responsibility to defend Proposition 8 in Court,” said Brian Brown, NOM’s president. 

"Although today’s ruling from the California Supreme Court confirms that the proponents of Prop. 8 have the right to defend their initiative when the state officials refuse to fulfill their sworn duty, it is gratifying to know that the over 7 million Californians who supported the initiative will have a vigorous defense of their decision in our federal courts.”