Prop 8 Sent to CA Supreme Court by Ninth Circuit
San Francisco, CA – This morning the Ninth Circuit sent the Prop 8 case to the California Supreme Court to determine whether the proponents have standing to defend the constitutional initiative defining marriage as between a man and a woman. The 16 page order is reflective of the early questioning by the panel during oral argument of the attorneys at the Prop 8 hearing last month. Judges Reinhart and Smith asked about the failure of the Governor and the Attorney General to file a notice of appeal and defend the case in court. The judges, one liberal and the other conservative, made references to the petition filed by Pacific Justice Institute attorneys in the California Supreme Court to force then Governor Schwarzeneggar and Attorney General Brown to file a notice of appeal. The failure to defend the law is, from a constitutional standpoint, disturbing and also left the unresolved question as to whether a party with standing is available to defend the Marriage Act.
Borrowing the language from the petition, the judges seemed profoundly troubled that the Governor and AG can essential “veto” or “annul” a constitutional provision enacted by the People of California. In its order the Court wrote, “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….” (PJI represented Dr. Joshua Beckley, senior pastor of Ecclesia Christian Fellowship in the suit in his capacity as a voter and taxpayer.) The Ninth Circuit further went on to state that the “Constitution’s purpose in reserving the initiative power to the People would appear to be ill-served by allowing elected officials to nullify either proponents’ efforts to ‘propose statutes and amendments to the Constitution’ or the People’s right ‘to adopt or reject’ such propositions.” (quoting article II, section 8(a) of the CA Constitution). These sentiments echo the same concerns of former Attorney General Ed Meese who submitted a sworn statement in support of the petition to the California courts.
“It is regrettable that the California Supreme Court denied the petition back in September, but we urge them to take the question certified by the Ninth Circuit,” stated PJI chief counsel Kevin Snider. Snider noted that there is no requirement by the State’s highest court to accept the question.