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Back to Section One | Back to Arts & Entertainment
posted Friday, May 6, 2011 - Volume 39 Issue 18
National LGBT legal groups challenge Prop 8 in California Supreme Court
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National LGBT legal groups challenge Prop 8 in California Supreme Court

by Shaun Knittel - SGN Associate Editor

On May 3, the National Center for Lesbian Rights (NCLR), Equality California, and Lambda Legal filed a friend-of-the-court brief with the California Supreme Court arguing that the proponents of Proposition 8 have no power to override the decision of elected state officials about whether to appeal a federal court decision that Prop 8 is unconstitutional.

According to a joint press release on May 4, the brief explains that initiative proponents are unelected and have no right to act as representatives of the state. It also explains that regardless of how the California Supreme Court rules, the supporters of Prop 8 have no standing to pursue an appeal in federal court because they are not harmed by allowing same-sex couples to marry and because their interests were limited to having the measure put to a vote.

'California law does not permit the unelected proponents of a constitutional initiative to step into the state's shoes when elected officials appropriately decide not to appeal a decision striking down an unconstitutional measure,' said Equality California Interim Executive Director Jim Carroll. 'We are hopeful that the appeal will soon be dismissed, restoring marriage equality as soon as possible, and that same-sex couples and their families will once again be able to enjoy equality and dignity under the law.'

NCLR legal director Shannon Minter explained, 'Under the California Constitution, the state attorney general must decide whether to appeal a federal court holding that a state law is unconstitutional, based on her conclusions about whether an appeal would be in the state's interest. Nothing in California law gives unelected initiative sponsors the power to make that decision on behalf of the entire state.'

'There is nothing in California's Constitution or statutes that provides proponents of initiatives any rights to defend those measures if they pass and are later challenged in court,' said Jon Davidson, legal director of Lambda Legal. 'At best, initiative proponents are like legislators who sponsor a bill, whom courts have repeatedly said are not entitled to appear in cases to defend the constitutionality of laws they drafted. To allow the proponents of Proposition 8 to represent the state would usurp the role of the attorney general, who is sworn to uphold the rights of all Californians, not just the 20 percent of state residents who voted in favor of the initiative.'

U.S. District Judge Vaughn Walker ruled Prop 8 unconstitutional in August 2010, and the sponsors of Prop 8 sought to appeal that judgment to the federal Ninth Circuit Court of Appeals. On January 4, 2011, the Ninth Circuit asked the California Supreme Court for guidance on whether the sponsors of Prop 8 have legal standing to pursue the appeal under California law. The California court said it would consider the question on an expedited basis with oral arguments to be held as early as this September.

Equality California is represented by Caldwell Leslie & Proctor, PC, and the Law Offices of David C. Codell.

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