Lambda Legal: Ninth Circuit Order In Prop 8 Case Should Prompt Badly Needed Clarification of California Law

(San Francisco, January 4, 2011)—Today a panel of the U.S. Ninth Circuit Court of Appeals, in the case Perry v. Schwarzenegger, certified to the California Supreme Court the question of whether California law either gives proponents of initiatives an interest in seeing that law enforced, or authorizes proponents to act in the place of the government to defend their initiative. Jennifer C. Pizer, National Marriage Project Director for Lambda Legal, issued the following statement:

"We hope the California Supreme Court takes up this procedural question about initiatives and believe the federal court's action was entirely reasonable. State law is unclear on those important points, and that's problematic for our entire state. In California, so much lawmaking is done these days by popular vote at the ballot box. The public needs to know what processes exist for testing measures enacted by voters at the ballot box. The stakes are especially high for vulnerable minorities in this state, including the lesbian, gay and bisexual people targeted and made unequal by Proposition 8. The state high court's decision to allow the initiative power to be used in this unprecedented way—to strip a vulnerable minority of a fundamental constitutional right—essentially read all the equality guarantees out of the California Constitution, and left all of us vulnerable to the whims of an anxious or disgruntled populace.

"We do not believe California law does or should allow initiative proponents special power to drive litigation about measures they have supported. Prop 8's proponents are not personally affected by that initiative as none of them wants to marry a same-sex partner. And state law up to this point has never authorized political activists to usurp the role of the state's chief executive and top lawyer if the activists disagree with those duly elected officials' decision not to prolong litigation of a particular court case. Although initiative proponents obviously play a particular role in California government by proposing a new law, the lawmaking function is separate from the law-defending function.

"Whether the California Supreme Court decides to take up this question or not, the reality is that many thousands of lesbian, gay and bisexual Californians are being wrongfully denied their basic constitutional right to marry the person they love. If the trial judge's sound decision recognizing Prop 8's unconstitutionality cannot be appealed, it should be allowed to take effect promptly. If it can be appealed, that process should proceed and his decision should be affirmed on its obvious constitutional merits.

"And we all should keep in mind that, if California's high court does indeed take up the question about initiatives, what it says about state law will not necessarily determine the outcome of this case. Ultimately, federal procedural law controls what cases can be brought in federal court, by whom, and when. That means the United States Supreme Court may yet review at least these procedural questions."

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