Gay-marriage foes get boost from Calif. court

(CBS/AP) 

Updated at 3:16 p.m. ET

SAN FRANCISCO - The sponsors of ballot propositions can step in to defend their initiatives from legal challenges if the governor and attorney general refuse to do so, California's highest court said Thursday.

"It's good news of a sort for opponents of same-sex marriage," CBS News senior legal analyst Andrew Cohen said, referring to how the decision affects Proposition 8, the state's gay marriage ban. "The state court now has advised the federal appeals court that the supporters of Prop. 8 who want to appeal last year's adverse ruling may do so, even though California's attorney general and governor have backed out of the case."

In short, Cohen said, the ruling answers a question that has been unanswered since August 2010, when a trial judge first stuck down the ban, and gives a 9th U.S. Circuit Court of Appeals panel a clear path to finally resolve the case on its merits.

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Responding to a question from a federal appeals court that is considering the constitutionality of the ban, the California Supreme Court said the lawmaking power granted to citizens under the state constitution doesn't end once propositions have been approved or rejected by voters.

"We conclude that California law authorizes the official proponents, under such circumstances, to appear in the proceeding to assert the state's interest in the initiative's validity and to appeal a judgment invalidating the measure," the unanimous ruling written by Chief Justice Tani Cantil-Sakauye states.

In the 61-page opinion, the seven justices said denying ballot proposition backers a seat at the table would effectively grant the governor and attorney general veto power over initiatives with which they disagreed, a situation the justices said would undermine the law-making powers California gave voters in 1911.

"Neither the governor, the attorney general, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters," the decision said. "It would exalt form over substance to interpret California law in a manner that would permit these public officials to indirectly achieve such a result by denying the official initiative proponents the authority to step in to assert the state's interest ..."

The three-judge Court of Appeals panel asked the state court in January to clarify who is eligible to fight for voter-approved initiatives in court when state officials opt not to. The panel said the question was unsettled under both federal and California law, but central to its deliberations in the ongoing same-sex marriage skirmish because if the backers of the 2008 initiative known as Proposition 8 lacked legal standing, it would have to dismiss the case.

The coalition of religious and conservative groups that qualified Proposition 8 for the ballot and successfully campaigned for its passage have asked the 9th Circuit to reverse a federal trial judge's ruling in August 2010 striking down the measure as a violation of gay Californians' civil rights. Both former Gov. Arnold Schwarzenegger and Gov. Jerry Brown, in his previous role as state attorney general, took the unusual step of refusing to appeal the decision.

The appeals court panel now must decide whether to accept the court's guidance and if so, how to apply it to Proposition 8. The state court's word, while expected to carry substantial weight since it involves a state Constitutional matter, is non-binding on the federal court.

But if the 9th Circuit does accept the Supreme Court's interpretation, it would clear the way for the appeals court to analyze the substance of the appeal. The ban's supporters on Thursday cheered the likelihood of that happening now that the state court has weighed in.

"We are delighted that the Supreme Court has clearly reaffirmed our right, as the official proponents of Prop 8, to defend over seven million Californians who amended their own State Constitution to restore traditional marriage," Protect Marriage General Counsel Andy Pugno said. "This victory is an enormous boost for Proposition 8 as well as the integrity of the initiative process itself."

Lawyers for the two gay couples who successfully sued to overturn the ban in the lower court had argued that if the ban's backers did not have the right to appeal, the trial judge's decision would stand and same-sex marriages would be legal in California for the first time since Proposition 8 passed three years ago.

After the Supreme Court ruling was issued, the couples' high-powered lawyers said they still felt confident the ban ultimately would be struck down by the 9th Circuit and possibly reach the U.S. Supreme Court.

"We are very anxious to move forward on the merits," former U.S. Solicitor General Ted Olson said.

The ruling establishes a state precedent that could be used in other ballot initiative cases the attorney general or governor decline to defend. Instances are rare of state officials refusing to appeal rulings that are adverse to voter-approved laws, but they have come up in California every couple decades or so.

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[magnumdr]

Why wouldn't any red blooded American man not want to be with a beautiful, soft, warm woman? Are these guys trying to end the world by not repoduceing children?!

[hypnotoad72]

If these folks have a beef, instead of wasting time prancing around buildings with big "___ is a sin" signs, maybe they should be friendly toward their purported foes ("love thine enemy") and use positive means to find them opposite-sex potential spouses.

Or is it easier to hold up a big sign and pretend you're macho?

[bradoxn]

Can Fred marry his dog then???

[hypnotoad72]

Not the same issue

[far2right]

Creature or nature? This is the crux of the argument. Homosexuals claim they were born that way. So, **** "marriage" becomes a civil right issue to them. (Of course, even if they concede it is mere choice, that is a separate argument. But let's address the "I was born this way" argument.)

If homosexuals are born the way they are, then this is a perturbation in nearly a million years of evolution. Evolution seeks to naturally produce a male/female attraction. Thus, if there is a natural male/male attraction then this is due to a genetic defect, a mutation. Now the question is, is this a beneficial mutation or terminal? I say terminal, ultimately in time.

The additional question becomes, are these genetic mutations we call homosexuals really authentically **** sapiens? They possess a "new" gene that true **** sapiens do not.

In my opinion they are not. They are to be acknowledged as "different" and having a non-human genetic makeup. Since they are non-human, they are therefore not guaranteed the same unalienable rights endowed by their Creator who bestows these rights on the true **** sapiens He creates.

[Dianna-Rene]

@far2right, Your arguments sound so familiar. So much so that I suggest you entitle your piece, "Mein Kampf II."

[haroldamaio]

"Marriage" has many definitions. Generally it means to join. What that joining means varies with incidence. Even among religions it varies.

Religious usage is only one form, there are many civil forms.

[formerusmcsgt1]

by veteran7796 November 18, 2011 12:51 AM EST
I find it amazing that I tell people Im against homosexuality, it's not natural and repulsive and they call me a bigot and say Im insensitive. ---
----
Being against something and trying to use that position to deny other's rights are two different things, bubba.

[hypnotoad72]

*bingo*

And I wonder how veteran7796 knows as a fact it is not natural...

[SusanStoHelit]

This is an obvious decision, spin aside. Obviously the people who put a ballot issue can fight for it, when the gov't declines to. It's not some great victory.

This never should have been up for vote - we don't vote on whether or not to allow American citizens equal rights. We don't vote to ban interracial marriage, interreligious marriage, etc. It's simply wrong. The majority does not get to take rights away from the minority.

[wayne40242]

Susan,why shouldn't it have been up for a vote?it's obvious that the people of Cal.doesn't support same sex marriage so why would the majority be forced to except something they don't support or believe in?it's not a right to marry,it's a privilege.this is no different than not allowing first cousins or even brothers and sisters from marrying.and yes it's a great victory because most Americans believe a marriage should be between a man and a woman.

[DisgustedAmerican88]

I agree. Why is this a political issue in the first place?? I don't care what people do in their bedrooms. I am so sick of hearing about this relative to politics. Please, let's focus on what's important; economics, foreign policy, etc. The only significant importance of this article is the idea that elected public officials can ignore voter approved issues. Of course the ignorant masses can't see that if this fundamental right of not honoring what the voters approved it sets a precedent to ignore other issues that were voted for. Regardless of the issue.. that's scary to me. Yet another way to take away from our rights as US citizens.

[samXXkiley]

coucou,

is a good start,
what will be the following of this decision? Only time will tell
"au revoir"

[longtree-2009]

thought ca voters voted against same sex marriage and won at the ballot. then, it appears the vote was cast aside. ca voted against it while other states, think ny, approved of same sex marriage. would think same sex marriages falls under states rights to grant or not to grant based on the votes within a state. perhaps ca should put it back on the ballot, if possible, to see if it passes again.

[LosAngelesCA]

How dare CBS label marriage supporters as "foes." That is defamation and it needs to stop.

I believe marriage is between a man and a woman and that is how I voted. I am so glad that our Supreme Court ruled how I knew it would. Californians' voter initiatives can not even be overturned by the legislature and that is how we roll.

And I am so glad that New York ruled for gay marriage. It's the STATE'S right to do. My state does not agree. It is as simple as that.

That is how the 9th Circuit will have to rule because of New York. The federal courts can not get involved with marriage. It can not be the case that some state vote for it and others do not, so the courts make them. That is not how America rolls.

[SusanStoHelit]

It's not a state's right to vote to deny rights to a segment of it's population. If you don't believe in gay marriage - don't marry someone of the same sex. But when you want to tell others what to do, that's outside your rights -just as it would be if a ballot issue passed to make interracial marriage illegal, or interreligion marriage illegal.

[Reverend-slappy]

Flyawatter
Please read Corintians 1 6:6-9 my son.