Prop 8 Standing Issue Sent to CA Supreme Court

Will Federal Case Be Decided on Merits or Technicality

SAN FRANCISCO, Tuesday, January 04, 2011 — Today, the 9th Circuit Court of Appeals booted a decision to the California Supreme Court  on whether Prop 8 proponents, ProtectMarriage.com, have standing to appeal Judge Vaughn Walker's radical decision to redefine marriage to accomodate same-sex couples in California. This is a postive development as the California Supreme Court has twice granted standing to committees representing the voters on issues related to marriage. If standing were denied, Prop 8 will be overturned with no one left to defend the will of the 7 million voters that defined marriage as a union of a man and a woman in the state constitution in November 2008.

Catholics for the Common Good attorney, Richard Katerndahl indicated that the judges are making sure that all the t's are crossed and the i's are dotted. While the California Supreme Court has granted standing to committees representing the voters regarding initiatives on a regular basis, the question of standing may never have been challenged before.

"It will be interesting to see if the California Supreme Court will decide on their own precedence or call for breifs and hold a hearing," said CCG Chair William B. May. "ProtectMarriage.com was granted standing before the state Supreme Court during a challenge to the initiative immediately following Prop 8's passage."

Alternatively, the state court could decide not to make a decision and kick it back the the 9th Circuit. One way or the other, this move move could delay a decision in the Prop 8 case for months or even a year.

"Our legal defense team had urged the Ninth Circuit to pose this question to the California Supreme Court if they had any doubt about our legal standing," said Andrew Pugno, general counsel for ProtectMarriage.com. "A definitive statement from the California Supreme Court would give the Ninth Circuit what it needs to make the correct decision."

"The Ninth Circuit’s order even quotes the state Supreme Court’s previous description of the initiative process in California as 'one of the most precious rights in our democratic process,” one that should be “jealously guarded by the courts.' Noting that the governor has no veto power over initiatives and the attorney general has no veto power whatsoever, the order points out, 'Although the Governor has chosen not to defend Proposition 8 in these proceedings, it is not clear whether he may, consistent with the California Constitution, achieve through a refusal to litigate what he may not do directly: effectively veto the initiative by refusing to defend it or appeal a judgment invalidating it, if no one else – including the initiative’s proponents – is qualified to do so.'”

The legal journal, The Recorder reported that Therese Stewart, chief deputy city attorney in San Francisco, said she doesn't think today's ruling indicates the panel wants to dismiss the case on standing, but rather that it wants the state court to say the proponents have standing so the panel can move on to the merits.

"I think the court's order certifying the question pretty strongly indicates the Ninth Circuit has an opinion on how the California Supreme Court should come out, and that opinion is in favor of initiative proponents having the power to represent the state."

"Politicians should not be able to nullify a democratic act of the people by refusing their duty to defend it,”  said Alliance Defense Fund Litigation Counsel Jim Campbell.  “The people of California have the right to be defended, and thus the official proponents of Proposition 8 must have standing to defend that law.  Otherwise, the Governor and Attorney General will succeed in indirectly invalidating a measure that they had no power to strike down directly."



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