The Ninth Circuit sent the Prop 8 case to the California Supreme Court to determine whether the official proponents “possess a particularized interest in… [Prop 8’s] validity or the authority to assert the State’s interest… to defend the constitutionality of the initiative… [on appeal] when the public officials charged with that duty refuse to do so.” The State’s high court agreed to answer that question and ordered briefing by the parties and set a schedule for amicus (friend of the court) briefs. Yesterday the official proponents of Prop 8 filed their opening brief arguing that historically California courts have permitted official initiative proponents to defend matters appearing on the ballot. The California Supreme Court has found that this is particularly necessary when governmental entities have “underlying opposition” to an initiative or “will not [defend]… with vigor.” At oral argument, Judges Reinhart and Smith appeared to be particularly concerned by the failure of the Governor and the Attorney General to file a notice of appeal and defend the case in court. This was reflected in the 16 page order certifying the legal question to the California Supreme Court. Reinhart and Smith questioned the attorneys during oral argument about the petition filed by PJI lawyers in the California Supreme Court to force then Governor Schwarzeneggar and Attorney General Brown to file a notice of appeal. PJI will continue to raise crucial legal issues by filing an amicus brief in the State’s Supreme Court in support of the proponents of Prop 8.
On another front, the Maryland legislature shocked gay rights proponents by declining to pass a bill legalizing same-sex marriage late last Friday. In a procedural move, the bill was sent to the Judiciary Committee where it was effectively killed.