Gay Marriage Advocates Answer Opponents’ Brief

(CN) - The conservative legal group that financed the gay marriage ban in California does not have standing, explicit or otherwise, to defend the measure on appeal after a federal judge declared it unconstitutional in August 2010, a group of gay and lesbian couples argued in an answering brief with the California Supreme Court.

The California Supreme Court interceded last month in the appeal before the 9th Circuit. The federal appeals court judges had said in January that they were unsure how to proceed with the appeal since former Gov. Arnold Schwarzenegger and former state Attorney General Jerry Brown, now California's 39th governor, would not defend Proposition 8 or appeal a federal judge's ruling that found the voter initiative was unconstitutional.

ProtectMarriage.com, the Sacramento-based conservative legal group behind Proposition 8 filed its brief last month. The group had previously failed to convince the state Supreme Court and an appellate court to force Schwarzenegger and Brown to appeal the landmark ruling by Chief U.S. District Judge Vaughn Walker.

Proposition 8 opponents argued that a finding for ProtectMarriage would effectively rewrite the state constitution, which states that the governor and attorney general are the chief law officers of the state.

"Proponents contend that a decision denying them the right to represent the interest of the State would 'effectively authoriz[e] the Governor and the Attorney General to "improperly annul" the "sovereign people's initiative power,"'" the 38-page brief states. "In reality, it is a decision in favor of proponents that would upend the carefully calibrated separation of powers embodied in the California Constitution. Permitting official proponents of a ballot initiative to act on behalf of the State in litigation challenging the validity of ballot initiatives would fatally undermine the constitutional authority of the Governor and Attorney General to make litigation decisions on behalf of the State."

The proponents also cannot claim standing through a "particularized interest," according to the brief, since millions of California voters had the same interest in supporting the ban.

"The question whether a litigant possesses a 'particularized interest' sufficient to confer Article III standing is a question of federal law that this Court need not address," the answering brief states. "In any event, state law would afford no assistance to proponents because California law circumscribes the rights of initiative proponents - especially after an initiative has been enacted. In fact, proponents' interest in the validity of Proposition 8 is not materially different from a jurisprudential standpoint than that of the millions of other California voters who financed, campaigned for, voted for or otherwise supported the measure."

California also closely regulates the authority of voter initiatives proponents, the couples argue. ProtectMarriage had the right to intervene in the initial District Court challenge, but the group already exercised that right and lost.

"In any event, proponents are wrong to suggest that failing to grant them the authority to represent the State's interest in the validity of a ballot initiative would 'nullify' the People's right to propose and enact initiatives," according to the brief. "The Governor and Attorney General have followed and enforced Proposition 8 from the day it took effect, and they continue to do so today. Even though the Governor and Attorney General elected not to defend that discriminatory, unconstitutional measure when plaintiffs challenged it in federal court, proponents were permitted to intervene in the district court proceedings to represent their own interest in the measure's validity, mounted a vigorous defense of Proposition 8 during a twelve-day trial, and clearly have had their day in court. It was the district court-not the Governor or Attorney General-that determined after a full and fair trial on the merits that Proposition 8 violates the United States Constitution and cannot stand. The Governor and Attorney General did not "nullify" Proposition 8; they simply exercised their prerogative not to expend California's finite resources challenging the district court's well-reasoned application of federal law to this case."

Initiative proponents can defend their own interests in the courts, but not the state's interest, the answering brief argues. That responsibility falls to the state attorney general. Since the courts declined to let ProtectMarriage force Brown and Schwarzenegger to defend Proposition 8 in September, they should not rule in ProtectMarriage's favor now, according to the brief.

"But nothing in the state constitution or this Court's decisions supports their attempt to second-guess the constitutional discretion that the Governor and Attorney General possess when deciding whether and how to defend a state law," the brief states.

On March 23, the 9th Circuit refused to let gay couples resume marrying "at this time" in California during the courts' consideration of the appeal.

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