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ProtectMarriage Has Standing to Challenge Prop 8 Ruling

By Robyn Hagan Cain on November 17, 2011 | Last updated on March 21, 2019

The California Supreme Court ruled this morning that ProtectMarriage has standing to challenge retired Judge Vaughn Walker’s 2010 ruling striking down California Prop 8. The case will now return to the Ninth Circuit Court of Appeals for a determination on the constitutionality of the law.

Prop 8 standing is a critical issue in California’s ongoing same-sex marriage debate because Gov. Jerry Brown and Atty. Gen. Kamala Harris refused to appeal Judge Walker’s decision. A state’s Attorney General typically takes responsibility for defending a state’s laws, but Harris and Brown opted not to defend Prop 8 because they agreed with Judge Walker’s ruling that the law was unconstitutional.

Instead, ProtectMarriage, a conservative coalition that sponsored the 2008 ballot proposition restricting marriage to heterosexual couples, appealed the ruling to the Ninth Circuit Court of Appeals. The Ninth Circuit Court of Appeals, in turn, asked the California Supreme Court to weigh in on whether ProtectMarriage had standing to defend the initiative.

Harris argued in court papers that public officials have exclusive authority to defend laws or appeal rulings for the state. Prop 8 supporters, however, countered that voters should not be left without a defense for a popularly-approved initiative "just because their officials refused to defend them," reports The San Jose Mercury News.

Today's ruling doesn't come as a surprise; several members of the California Supreme Court expressed concern during oral arguments in August that restricting the right to defend state laws to state officials would effectively give officials a pocket veto to overturn voter-approved laws with which they disagreed.

In the opinion, California Chief Justice Tani Cantil-Sakauye wrote that when public officials decline to defend a ballot initiative, "the official proponents of a voter-approved initiative measure are authorized to assert the state's interest in the initiative's validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative."

The case will now proceed to the Ninth Circuit Court of Appeals. Regardless of the outcome in the Ninth Circuit, we expect the decision to be appealed to the U.S. Supreme Court.

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