On Tuesday, the California Supreme Court will hear arguments on an important question of California law that has arisen in Perry v. Brown, the ongoing federal challenge to Proposition 8, a 2008 ballot measure that stripped the ability to marry from same-sex couples in California.
The Court must decide whether California law allows the sponsors of Prop 8 to force an appeal in Perry v. Brown—even though the California Attorney General agrees that Prop 8 is unconstitutional. To understand why Tuesday’s hearing is significant, it is helpful to look back on the history of marriage equality in California.
• May 2008—The California Supreme Court ruled that California’s laws barring same-sex couples from marriage violated California’s Constitution. In the following months, more than 18,000 same-sex couples married in California.
• November 2008—California voters narrowly enacted Prop 8, which changed the California Constitution in order to once again permit the state to discriminate against same-sex couples.
• November 2008—Same-sex couples and Equality California challenged Prop 8 in state court.
• May 2009—The California Supreme Court held that California voters had the power to amend the State Constitution, allowing Prop 8 to stand. The Court also held that the 18,000 plus marriages were still valid and must be honored by the state.
Immediately after that 2009 California Supreme Court ruling, two same-sex couples filed the Perry case in federal court, arguing that Prop 8 violates the U.S. Constitution. The court permitted Prop 8’s official supporters to participate in the case to defend the initiative, and also permitted the City and County of San Francisco to participate to oppose Prop 8. In August 2010, U.S. District Court Judge Vaughn R. Walker ruled that Prop 8 is unconstitutional.
The California Attorney General and the Governor did not appeal Judge Walker’s ruling because they agree that Prop 8 is unconstitutional. But the proponents of Prop 8 filed an appeal in the federal Ninth Circuit Court of Appeals. On January 4, 2011, the Ninth Circuit asked the California Supreme Court for guidance on whether the Prop 8 sponsors have a legal right to force an appeal under California law.
This is the question before the California Supreme Court on Tuesday. While this may seem like a technical issue, it has far-reaching implications for the whole state. California passes many laws through the initiative process, including many that target disfavored groups. Under current state law, California’s Attorney General and Governor can decide not to appeal a court decision ruling that an initiative is unconstitutional. For example, when a federal district court struck down most of Prop 187 (which targeted immigrants) in 1997, then Governor Gray Davis did not appeal that decision. But depending on how the California Supreme Court rules, future Governors may lose the ability to make such final decisions for the state—leaving disfavored groups in California even more vulnerable to unconstitutional initiatives that single them out for attack.
Unlike the Attorney General and the Governor, initiative sponsors are not accountable to the public. All that is required to be an initiative sponsor is to submit the text of a proposed initiative and get enough signatures to qualify the measure for the ballot. In this case, the official supporters of Prop 8 are five individuals. It would be a gross miscarriage of justice—and a blow to California’s democratic system of government—for the Court to rule that a mere handful of private citizens representing only their own narrow interests can make decisions for the entire state.
After the California Supreme Court answers the Ninth Circuit’s question, the case will go back to the Ninth Circuit for a decision. The California Supreme Court may hold that initiative sponsors do not have any special power under state law to step in and override the decisions of the California Attorney General and Governor. If that happens, the Ninth Circuit will likely rule that the Prop 8 supporters cannot appeal the ruling. That would mean that the Ninth Circuit would dismiss the appeal, Judge Walker’s ruling would stand, and same-sex couples would once again be able to marry in California.
Alternatively, if the California Supreme Court holds that California law gives initiative sponsors the extraordinary power to bring an appeal over the objections of the Attorney General and the Governor, the Ninth Circuit would still have to decide whether Prop 8’s supporters meet all of the other criteria to appeal under federal law. If the Ninth Circuit allows them to appeal, the Ninth Circuit would then decide whether to uphold or reverse Judge Walker’s ruling that Prop 8 is unconstitutional.
The California Supreme Court must issue its decision within 90 days of oral argument and is likely to rule even sooner.