Bloomberg News

Gay-Marriage Foes Can Defend California Ban, Court Rules

November 18, 2011

(Updates with lawyer’s comment in sixth paragraph.)

Nov. 17 (Bloomberg) -- Proponents of California’s Proposition 8 ban on gay marriage can defend the measure after state officials refused to do so, the California Supreme Court ruled.

The decision clears the way for a federal appeals court to consider whether Proposition 8 discriminates against same-sex couples. After a federal judge ruled last year that Proposition 8 is unconstitutional, the measure’s proponents asked the U.S. appeals court in San Francisco for a reversal. That court asked the California Supreme Court to first decide whether the backers could stand in for state officials in the proceeding.

Letting Proposition 8 proponents defend the law “serves to enhance both the fairness of the judicial process and the appearance of fairness of that process,” the state’s high court said today in a unanimous ruling.

California Governor Jerry Brown, a Democrat who was attorney general during a trial over the legality of Proposition 8, and Arnold Schwarzenegger, a Republican who was then governor, refused to defend Proposition 8.

The federal appeals court in San Francisco has scheduled a Dec. 8 hearing for arguments on whether Proposition 8 is discriminatory.

“Because the people of California have a right to be defended, Proposition 8’s official proponents will be allowed to continue defending the marriage amendment,” said Brian Raum, a lawyer for Alliance Defense Fund, a group representing supporters of the gay-marriage ban. “Otherwise, state officials would have succeeded in indirectly invalidating a measure that they had no power to strike down directly,”

‘Long Wait’

Theodore Olson, an attorney representing gay couples who sued to overturn Proposition 8, said the ruling moves the lawsuit to a critical juncture.

“Important questions of federal law remain pending before the Ninth Circuit,” Olson said in an e-mailed statement. “We hope that the long wait for justice by gay and lesbian Californians will soon be over.”

The state court wasn’t asked to consider the legality of Proposition 8, which amended California’s constitution to say that marriage is between a man and woman. The proposition was passed by 52 percent of voters in 2008. U.S. District Judge Vaughn Walker in San Francisco, now retired, ruled there was “overwhelming” evidence that Proposition 8 violates equal- protection rights.

Initiative Process

The measure’s proponents had argued that California’s initiative process, which allows voters to enact legislation, gives proponents of ballot measures wide latitude to participate in legal proceedings when the validity of a proposition is challenged.

Lawyers for gay couples who sued to overturn Proposition 8 and California Attorney General Kamala Harris have argued that the measure’s backers aren’t authorized to represent the state’s interest in the appeal.

“This ruling now shifts the litigation to the federal appeals court,” Harris said in an e-mailed statement. “I firmly believe that Proposition 8 violates the equal protection and due process clauses of the U.S. Constitution and am confident that justice will prevail.”

In a separate state lawsuit, the California Supreme Court upheld Proposition 8 in 2009 and ruled that 18,000 gay marriages performed before the ban remain valid. The court had voted 4-3 in May 2008 to legalize gay marriage. Proposition 8 outweighed that ruling.

The case is Perry v. Schwarzenegger, 10-16696, U.S. Court of Appeals for the Ninth Circuit (San Francisco).

--Editors: Andrew Dunn, Stephen Farr

To contact the reporter responsible for this story: Karen Gullo in San Francisco at

To contact the editor responsible for this story: Michael Hytha at

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