The decision is a victory for those seeking to limit marriage to heterosexual couples. Calif. ruling setback to gay marriage

The California Supreme Court ruled on Thursday that supporters of Proposition 8 - which outlawed gay marriage - can appeal a federal judge’s ruling that the state’s ban on same-sex marriage is unconstitutional.

In its decision, the state court said backers of the gay marriage ban have the legal right to appeal U.S. District Judge Vaughn Walker’s ruling striking down Prop 8 last year. At the time, Gov. Arnold Schwarzenegger and Attorney General Jerry Brown declined to defend the measure’s constitutionality.


The state Supreme Court’s decision means Prop 8’s sponsors can appeal the case even when the public officials charged with doing so refused to act to defend it on the state’s behalf.

“In a postelection challenge to a voter-approved initiative measure, the official proponents of the initiative are authorized under California law to appear and assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so,” the decision stated.

“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 9th U.S. Circuit Court of Appeals had asked the state Supreme Court to decide the matter before it takes on an appeal of the measure’s constitutionality.

The decision, a disappointment for some gay rights advocates who had argued there should be no appeal of the decision striking down Prop 8, could lead to a federal showdown impacting gay marriage bans beyond California, The Los Angeles Times wrote, and eventually wind up before the U.S. Supreme Court.

American Foundation for Equal Rights attorney Theodore Olson, one of the lawyers that argued that the ban’s supporters did not have standing to appeal the ruling, said the case will likely be in the 9th Circuit shortly. He said they are “thrilled” to be back in federal court.

“They’ve made their decision, we’re going to proceed on the basis of that decision and move forward,” Olson told reporters on a conference call. “The most important thing for us and our clients, and gay and lesbian people in California, is it’s been way too long.”

“We’re very happy to have an opportunity to go forward as promptly as possible,” Olson added.

And Chad Griffin, AFER’s board president, noted they had to address the question of standing as a matter of procedural process, but that the group’s focus has always been to “win this case on the merits.”

Meanwhile, the National Organization for Marriage, one of the major supporters of Prop 8, said it was also pleased the case would now move on the fast track and likely go to the Supreme Court, where they too expect a victory.

“It has been nothing short of shameful to see Governor Jerry Brown, his predecessor Arnold Schwarzenegger and Attorney General Kamala Harris abdicate their constitutional responsibility to defend Proposition 8 in Court,” NOM president Brian Brown said in a statement. “Although today’s ruling from the California Supreme Court confirms that the proponents of Prop 8 have the right to defend their initiative when the state officials refuse to fulfill their sworn duty, it is gratifying to know that the over 7 million Californians who supported the initiative will have a vigorous defense of their decision in our federal courts.”

Several gay rights groups said they disagreed with Thursday’s ruling, but are pleased the case is going forward.

“While a disappointing ruling, this case is now back in federal court, where we expect a quick victory,” Lambda Legal’s Legal Director Jon Davidson said in a statement.

And Shannon Minter, Legal Director at National Center for Lesbian Rights, wrote to the website Prop 8 Trial Tracker that the ruling is a “terrible decision” for California law.

“The court has given initiative proponents unprecedented and virtually unlimited power, and the people of California will be living with the dangerous consequences of that decision for years to come,” Minter stated.

But, he added, “in the the bigger picture, this is good news for same-sex couples in California.”

Thursday’s decision establishes a precedent in California for other ballot initiative cases when public officials decline to defend.