Updated: Minter and Davidson React to California Supreme Court Prop 8 ‘Standing’ Hearing

AFER lead attorney Ted Olson arguing the Prop 8 "standing" issue before the California Supreme Court in San Francisco Spet. 6, 2011 (Photo is screen capture of live broadcast)

Updated below: The California Supreme Court heard arguments in the Perry v. Brown case for about an hour Tuesday morning. The case was brought by the American Foundation for Equal Rights, which challenged the constitutionality of Prop 8 on behalf of two same sex couples who won in District Court in August 2009. The case is on appeal to the 9^th Circuit Court of Appeals but before that court decides, they asked the California Supreme Court for their opinion on whether the proponents of Prop 8 should have standing to defend Prop 8 in federal court, since Gov. Jerry Brown and Attorney General Kamala Harris both think Prop 8 is unconstitutional and refuse to defend it.

But when AFER lead attorney Ted Olson argued that the non-elected citizens who pushed the initiative (with animus, District Court Judge Vaughn Walker decided) cannot stand in for the named government officials (whose job it is to administer marriage licenses),  Justice Carol A. Corrigan seemed almost offended. The Governor and Attorney General don’t get to decide what’s constitutional, the court does – they don’t get a “pocket veto.”

It seems to me that his California court is enthralled with the almighty power of “the people” to “express itself via the initiative – even if that initiative is based on bigotry and even if “the people” change their collective minds after the initiative is passed. So much for protecting the rights of the minority from the “tyranny” of the majority.

NCLR Legal Director Shannon Minter, who argued the Prop 8 cases before the California Supreme Court, is also worried about the way the hearing went, telling me:

I was concerned by the tenor of many of the justices’ questions today.  The court has a responsibility to enforce the California Constitution, which gives elected state officials—not private initiative sponsors—the authority to decide whether to appeal a federal court decision invalidating a state law.  Both conservative and progressive elected officials have occasionally exercised that discretion in the past by choosing not to expend state resources to defend invalidated measures.  Permitting special interest groups to usurp that decision-making authority would dramatically change the current law and take a giant step down the road of turning California into a mobocracy.   I was disappointed that, with some notable exceptions, too many of the court’s questions today did not address the specific legal questions before them, but rather seemed to glorify the initiative process in the abstract and to abdicate a searching examination of the California Constitution in favor of emotional appeals to “the people.”  The initiative process is already frequently misused to target vulnerable groups, due in part to the Court’s past reluctance to enforce any meaningful limits on the process, even when those limits are mandated by the California Constitution.  I sincerely hope the Court does not compound that mistake by now giving initiative proponents an unprecedented new power to step outside of their proper legislative role and usurp the power that our Constitution gives only to elected state officials in the executive branch.

UPDATE: Lambda Legal’s Legal Director Jon Davidson sent me this: 

I honestly am not sure what the California Supreme Court will do.  I could see reason to be worried by the tenor of some of the questions, but I feel less able to predict an outcome from what was said than is often the case. It’s definitely possible that they California Supreme Court could provide a foothold for the Ninth Circuit to find standing.  Another possibility, however, is that the California Supreme Court will not provide a very direct answer to what was posed by the Ninth Circuit, simply noting the liberal policy of California to allow intervention by initiatve proponents, without explaining whether that meets the “particularized interest” test for federal standing or whether state law authorizes proponents to act on behalf of the state when state officials don’t appeal a ruling that an initiative violates the federal Constitution.  There also were some questions that indicated at least some of the justices were worried about the broad implications for other cases of any ruling that might allow initiative proponents toact on behalf of the state, such as whether iniatitive proponents would therefore have the power to object to the  government settling litigation challenging initiatives or to challenge stipulations or admissions made by government defendants in such cases.  Still, I was bothered by comments that focused on whether the power of initiative would be nullified if the court ruled that initiative proponents did not have a particularized interest or authority to act on behalf of the state. The fact that, in a small number of cases, the validity of an initiative might not get appellate review shoudln’t give the court license to find interests that no provision of the California Constituiton and no statute affords initiative proponents.  Here, the initaitive is being enforced by the Governor and Attorney General at present and there was a fully litigated trial.  It was the district court that ‘nullified” Prop. 8 by finding it unconstititonal, not the government defendants.  There is no right on anyone’s part to have that decision receive appellate review.  Initiative proponents have the right to gather signatures to place a matter on the ballot, which is a legislative power.  Nothing provides them the right to defend that measure if it passes (wichi is the executive’s power) and I hope the California Supreme Court does not invent one.

Whatever the California Supreme Court decides, and however the Ninth Circuit rules after they do, that’s unlikely to be the last stop.  Even if the Ninth Circuit finds standing, if the case makes it to the U.S. Supreme Court, they could well declare there is no standing.  This case is far from over, whatever happens next.

The court has 90 days to deliver its opinion to the 9th Circuit. HERE IS VIDEO OF THE HEARING.

I will update with more concrete analysis, but in the meantime you can read the Courage Campaign’s live-blogging of the hearing here. The LA Times has a blog post up, too.

In my opinion, the court was considerably more “friendly” to Prop 8 proponents’ lead attorney Charles Cooper.

Prop 8 prononents' lead attorney Charles Cooper addressing the California Supreme Court in Prop 8 'standing' hearing Sept. 6, 2011 (Photo screen capture from live broadcast)

This is from the National Center for Lesbian Rights:

The California Supreme Court may hold that initiative sponsors do not have any special power under state law to step in and override the decisions of the California Attorney General and Governor. If that happens, the Ninth Circuit will likely rule that the Prop 8 supporters cannot appeal the ruling. That would mean that the Ninth Circuit would dismiss the appeal, Judge Walker’s ruling would stand, and same-sex couples would once again be able to marry in California.

Alternatively, if the California Supreme Court rules that California law gives initiative sponsors the extraordinary power to step into the shoes of elected officials for purposes of defending Prop 8, the Ninth Circuit will have to decide whether that is enough to give them standing to appeal Judge Walker’s decision. If so, then the Ninth Circuit will permit the appeal to proceed and will either affirm or reverse Judge Walker’s decision invalidating Prop 8.

To which NCLR Executive Director Kate Kendell adds:

 “It would be an unthinkable blow to California’s democratic system of government if the handful of individuals who sponsored Prop 8 could make decisions for the entire state. Today’s arguments raised critical questions affecting the future of all groups who may be targeted by unconstitutional ballot initiatives, and the California Supreme Court’s decision will determine whether our state can be held hostage by special interests with no accountability to the public. We are hopeful that the Court will affirm that a handful of private citizens representing only their own narrow interests cannot usurp the role of the duly elected officials of the state of California.”

UPDATE: This is from Lambda Legal:

Today, the California Supreme Court heard arguments as to whether the proponents of Proposition 8 have an adequate interest under California law to defend the constitutionality of such an initiative when public officials decline to appeal a judgment invalidating it.  Lambda Legal issued the following statement from Legal Director Jon Davidson following today’s oral arguments:

“It is often impossible to predict from the questions asked by appellate judges how they will rule and today was no different.  All of the judges on the California Supreme Court asked probing questions and seemed concerned about the implications of any decision they might make. We continue to hope that the Court will ultimately decide that small groups of unelected individuals who are answerable to no one should not be able to act on behalf of the state.

“We also hope they will see that the proponents of Proposition 8 had no direct interest in the validity of the measure. Their only legal interest was getting it placed on the ballot.  A philosophical interest based on prejudice against lesbian and gay people should not be enough to gain access to federal courts.”

Equality California issued this press release:

The California Supreme Court heard oral arguments today on whether proponents of Proposition 8 have the right to appeal a federal district court decision issued last August by Judge Vaughn R. Walker, which found the measure that eliminated the freedom to marry for same-sex couples in California unconstitutional. Proponents are asking for legal standing to challenge the ruling even though the Governor and the Attorney General have refused to do so.
Equality California Executive Director Roland Palencia released the following statement:

“Extremists that backed Proposition 8 want the court to grant them special authority to trump the decision of the Governor and the Attorney General. This request is not only ridiculous, it’s outrageous. Anti-equality individuals and organizations are not official representatives of the State and, despite their claims, they will not experience harm if same-sex couples once again have the freedom to marry.

“In fact, it is gay and lesbian couples and their families who are harmed every day that they are denied access to the fundamental right to marry. Judge Walker recognizes this. The Governor and Attorney General recognize this and California citizens increasingly recognize it as well.

“First opponents of equality used lies and and cruel stereotypes about LGBT people being a threat to children and families to to scare voters into supporting Prop 8. They carried the same messages into the courts and now with their attempts to overturn the FAIR Education Act, which will teach factual history about the contributions of people with disabilities, LGBT people and Pacific Islanders adding to the list of often overlooked groups such as women, African Americans, and Latinos.
“We appeal to fair-minded Californians to reject this extremist anti-equality agenda once and for all. And we appeal to the California Supreme Court to apply the law fairly and accurately and reject our opponents’ request for standing to appeal Judge Walker’s decision.”

AFER is still optimistic for the final outcome of the case and put out this press release:

Today, plaintiffs in Perry v. Brown – the case to overturn the ban on marriage for gay and lesbian Californians – presented arguments before the Supreme Court of California regarding whether proponents of a ballot initiative possess “standing” to defend the constitutionality of the initiative on appeal where the Governor and Attorney General exercise their discretion not to appeal. The plaintiffs maintain that the proponents of Proposition 8 do not have standing to appeal Chief Judge Walker’s opinion invalidating the proposition because the California Constitution grants the Attorney General the exclusive authority to represent the interests of the State in judicial proceedings and to make decisions regarding the defense of state laws.

The American Foundation for Equal Rights (AFER) is the sole sponsor of the Perry case.

“There is ample authority that individuals do not have a right to defend a law unless they would suffer a direct and immediate harm from its invalidation,” said attorney Theodore B. Olson, who represents the Plaintiffs in the Perry case. “The proponents of Proposition 8 will not suffer any harm from a decision that grants gay and lesbian Californians their fundamental civil right to marry. It is the Attorney General who has the exclusive authority to make litigation decisions on behalf of the State, and here the Attorney General has made the sound decision that the discriminatory provisions of Proposition 8 do not warrant defense on appeal.  Proponents cannot second-guess that exercise of discretion.”

If the Supreme Court of California decides proponents do not have standing, then proponents’ appeal would likely be dismissed and marriage equality would return to California in short order.  If the Supreme Court decides proponents do have standing under state law, then the Ninth Circuit would still have to determine whether proponents have standing under federal law.  If the Ninth Circuit finds standing, it will then rule on the constitutionality of Prop. 8 on the merits. No matter what the Ninth Circuit decides, its ruling is likely to be challenged in the U.S. Supreme Court.

“This morning’s hearing before the California Supreme Court marks a seminal moment in our Plaintiffs’ case,” said AFER Board President Chad Griffin. “Today, we have moved one important step closer to marriage equality for all gay and lesbian couples across California. Proposition 8 is hanging by a thread and soon the historic federal court decision that ruled Prop. 8 unconstitutional will be realized.”

The anti-marriage proponents of Prop. 8 have been trying to hide what happened in that historic federal court trial.  Not only was their defense of Prop. 8 ruled unconstitutional, but they are refusing to let the public see the videotapes that were taken during trial.  

Plaintiffs and AFER were back in the District Court on August 29 to urge Chief Judge James Ware to unseal the video recordings of the Proposition 8 trial, citing the strong presumption of public access to judicial records and the lack of any basis to keep the video secret.  

Proponents have been utterly unable to explain why the public should be barred from seeing and hearing for themselves what happened in a public trial potentially affecting the rights of millions of Americans.Proponents do not want the world to see the powerful evidence Plaintiffs submitted showing that Proposition 8 flatly violates the Constitution and the extraordinarily weak case that they put on trying to defend this discriminatory law.

Recently, The New York Times and Los Angeles Times editorial boards published editorials calling for the release of the Prop. 8 trial tapes, and the Reporters Committee for Freedom of the Press published an op-ed in the Los Angeles Times advocating for the public’s right to see the video recordings.  Judge Ware’s decision is expected in the near future.

In an effort to make certain that the American public knows what happened at the Prop. 8 trial, AFER is teaming up with Broadway Impact to produce “8,” a play chronicling the historic trial, written by AFER Founding Board Member and Academy-Award winning writer Dustin Lance Black and directed by Tony Award-winning actor and director Joe Mantello.

The all-star cast includes Anthony Edwards, Morgan Freeman, Cheyenne Jackson, Christine Lahti, Rob Reiner, Marisa Tomei, and Yeardley Smith, with more casting announcements to come.

Black, who penned the Academy-Award winning feature film “Milk,” based “8” on the actual words of the trial transcripts, first-hand observations of the courtroom drama and interviews with the plaintiffs and their families.  It is set to premiere at the Eugene O’Neill Theatre in New York City on Monday, September 19, 2011 for an exclusive, one-night-only fundraiser to benefit AFER.

• See Plaintiffs’ Briefing in the California Supreme Court HERE:  www.afer.org/wp-content/uploads/2011/04/2011-04-04-CASC-Plaintiffs-Answering-Brief.pdf
• See AFER’s Standing FAQ HERE:  www.afer.org/our-work/standingfaq/
• See AFER’s Press Release regarding the Release of Trial Videotapes HERE:  www.afer.org/news/afer-asks-u-s-district-court-to-let-americans-see-trial-videotapes/
• See information about “8” HERE:  www.afer.org/broadway8/

Tagged as: California Supreme Court, Charles Cooper, Jon Davidson, Kate Kendell, Lambda Legal, National Center for Lesbian Rights, PROP. 8, Shannon Minter, Ted Olson