(San Francisco, February 16, 2011) — Today the California Supreme Court agreed to answer a question by the U.S. Ninth Circuit Court of Appeals on whether or not supporters of a California ballot measure can continue litigation about that measure's constitutionality when state officials decide against doing so. A three-judge panel of the U.S. Ninth Circuit Court of Appeals certified the question in the Prop 8 case, Perry v. Schwarzenegger, on January 4. In response to today's announcement, Marriage Project Director Jennifer C. Pizer of Lambda Legal issued the following statement
"Because the federal appeals judges said they need clarification, we look forward to a decision by the California Supreme Court confirming that initiative proponents lack legal standing to continue the Perry case. They are not law enforcers, and have the same limited rights as everyone else to litigate only when their own rights are at stake, not merely to assert their opinions about others' rights."
Initiative proponents also cannot step into the shoes of the attorney general, the governor or other state officials. The reason for this is basic: the governor and attorney general are elected by the people to represent all the people, not just one point of view on one issue, out of countless, competing concerns. Most importantly, state officials swear an oath to uphold the federal and state constitutions, including their abiding promises of equal protection and due process for everyone. Initiative proponents take no such oath, and have no such duties.
Empowering initiative proponents with a special, new exception to these rules would be mistaken in any circumstances but the error is especially stark in this case. Prop 8's proponents claim to represent "the people," but in fact they only represent some seven million voters in a state of 38 million residents. Moreover, according to the U.S. Census, the tiny group of same-sex-couple residents targeted by Prop 8 is only around 200,000 people, or less than 2% of the population.
The state high court's previous decision to allow the initiative power to be used in the unprecedented way Prop 8 did – to strip a terribly vulnerable minority of a fundamental constitutional right – also stripped the equality guarantees out of the California Constitution. Yet another departure now from bedrock California law to allow proponents an exception from the "legal standing" rules would invite further, deeply problematic consequences. It would mean proponents could enter every case about an initiative to argue against the state's position. They could refuse ever to compromise about anything concerning the litigation process. And they could object to every settlement plan based on ideology about what the law should be, rather than what it is.
If the California Supreme Court rules that initiative proponents do indeed lack standing, as we believe is proper, we hope it brings a prompt end to the barrier facing lesbian and gay couples, who only wish to love and care for each other with their government's equal blessing in civil marriage."