- The Washington Times - Thursday, November 17, 2011

Supporters of traditional marriage scored a crucial victory Thursday as the California Supreme Court ruled that sponsors of Proposition 8 and other ballot measures are entitled to defend the initiatives in court when state leaders refuse to do so.

The decision comes as a federal appeals court prepares to issue a decision on the constitutionality of Proposition 8, the California initiative banning same-sex marriage, setting the stage for a showdown on marriage before the Supreme Court.

Foes of Proposition 8 had argued that ProtectMarriage.com, the campaign that placed the measure on the 2008 ballot, lacked standing to appeal an earlier court decision overturning the initiative. The California governor and attorney general have refused to defend Proposition 8 in court.

The impact of the decision reaches well beyond the issue of gay marriage. If the state Supreme Court had ruled against ProtectMarriage.com, it would have allowed the governor and attorney general to nullify any successful ballot measure simply by refusing to defend it in court.

California voters approved Proposition 8 by a margin of 52 percent to 48 percent.

“The notion that initiative proponents can’t defend their own initiative when state officials won’t would effectively gut the initiative process in California,” said John Eastman, a Chapman University School of Law professor and chairman of the National Organization for Marriage’s board of directors.

The decision came as a setback for supporters of same-sex marriage, but they said they were confident they would prevail before the 9th Circuit Court of Appeals. The court is expected to issue a ruling on an appeal filed by ProtectMarriage.com by the end of the year.

District Court Judge Vaughn Walker ruled Proposition 8 unconstitutional in August 2010 after a three-week trial.

“While a disappointing ruling, this case is now back in federal court, where we expect a quick victory,” said Lambda Legal defense fund director Jon Davidson. “The ruling addresses only a procedural legal question. The key question underlying this case is whether the U.S. Constitution permits a state electorate to treat one group of people unequally to everyone else by depriving them of what the state’s high court has held to be a fundamental right.”

Mr. Davidson also noted that the standing issue is still in play. The 9th Circuit is expected to rule both on the constitutionality of Proposition 8 and on whether initiative proponents may represent their ballot measure in federal court.

“We believe the U.S. Court of Appeals should rule that they lack standing under federal law and, if they don’t, that the full 9th Circuit or the U.S. Supreme Court should rule that initiative proponents are not entitled to take over the government’s role,” said Mr. Davidson.

Given that the 9th Circuit had asked for the California Supreme Court to weigh in on the matter, “it seems certain that the 9th Circuit would not ignore the advice,” said the National Organization for Marriage in a statement.

A 9th Circuit decision is expected before the end of the year. Despite winning the battle on standing, proponents of traditional marriage hold out little hope that the federal court will uphold the constitutionality of Proposition 8.

One of the jurists on the three-judge panel charged with hearing the case is Judge Stephen Reinhardt, considered the court’s most liberal member. Judge Reinhardt has refused to recuse himself from the case even though his wife, Ramona Ripston, filed a brief against Proposition 8 as head of the American Civil Liberties Union of Southern California.

“I’m not optimistic about our chances with this panel on the 9th Circuit, but everyone knows this case is going to the Supreme Court,” said Mr. Eastman. “And I like our odds with the Supreme Court.”

As for Judge Reinhardt, “I think he’s the most frequently reversed judge in the country, so I was actually pretty happy to see him on the panel,” said Mr. Eastman.

Cases in which state officials refuse to defend ballot initiatives approved by the voters are rare. In what may be the most recent example, Wisconsin state Attorney General J.B. Hollen refused to represent the state in defending a voter-approved domestic-partners law in 2009. The governor hired outside counsel to defend the law in his place.

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