The California Supreme Court ruled today unanimously that defendant-intervenors like ProtectMarriage.com have standing to appeal Judge Vaughn Walker’s ruling invalidating the ballot initiative and legalizing same-sex marriage in the state. The key bit from the ruling, which is available here, is this:
In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.
The Ninth Circuit asked for this legal ruling on the issue of standing. If the Ninth denied standing to the defendant-intervenors, the case basically stops there (the defendant-intervenors could appeal standing, but the Supreme Court would have little motivation to get involved, and state law on standing would probably be enough to carry the day), and same-sex couples in California would be allowed to marry, since nobody could challenge Judge Walker’s opinion. If they grant standing, then the case has to be ruled on the merits, a process that will take time and probably wind up in the lap of the Supreme Court. There’s been a roiling debate over the best practice, and what LGBT activists should prefer. Many say that the quickest way to confer marriage equality on LGBT citizens of the nation’s largest state is for standing to be denied. However, the American Federation of Equal Rights brought this case forward to become a precedent, and indeed to get all the way to the Supreme Court. If the defendant-intervenors lacked standing, the case would not be able to proceed, or to have precedential value, and the process would have to start over. So the difference is between California getting marriage equality, and a process continuing whereby all LGBT members in America get it.
It’s a difficult call. There’s risk involved in going to the Supreme Court, even with Ted Olson and David Boies arguing the case. If they lose, the battle for nationwide marriage equality could be set back by that legal ruling for a long time. In addition, the defendant-intervenors, some argue, are being granted “special standing” here, which could open up a can of worms. Rick Jacobs of the California Courage Campaign reacted today by saying “Allowing the Prop 8 proponents to have special rights in Court may open the floodgates to wealthy special interests to do the same. The judges of the 9th Circuit must determine if people who had enough money to buy a ballot measure that calls for people to vote on each other’s rights should have special rights in federal court.”
Importantly, Jacobs makes the point that this ruling doesn’t mean that the Ninth Circuit will grant standing to the defendant-intervenors. The California Supreme Court was only asked to answer a question about standing. I would say it’s very likely that the Ninth goes ahead and grants standing at this point, and the case gets decided on the merits. But it’s not a done deal.
At any rate, this is a difficult call. Ultimately, I think what happened today is a good thing. It’s risky, but ultimately we will get clarity on the Constitutional abridgment of the freedom to marry. And I think it’s worth going for that, rather than winning on a technicality, which does little for the LGBT community outside of California. If same-sex couples can get married in New York, in Iowa, in Massachusetts, in the District of Columbia, and elsewhere, they ought to be able to get married across the country. The lawsuit that will apparently get to the Ninth Circuit now provides the opportunity to make that a reality.