Statement by NCLR Executive Director Kate Kendell, Esq.

(San Francisco, CA, September 6, 2011)—Today, the California Supreme Court heard arguments on an important question of California law that has arisen in Perry v. Brown, the ongoing federal challenge to Proposition 8, a 2008 ballot measure that stripped the fundamental right to marry from same-sex couples in California.

The Ninth Circuit Court of Appeals asked the California Supreme Court to decide whether state law gives the sponsors of Prop 8 special authority to appeal the August 2010 decision by federal district court Judge Vaughn R. Walker holding that Prop 8 is unconstitutional—even though the California Attorney General and the California Governor agree with the court’s decision and have decided not to appeal. After the California Supreme Court answers the question, the case will go back to the Ninth Circuit for a decision on whether the Prop 8 sponsors can pursue their federal court appeal of Judge Walker’s decision.

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.

Statement by NCLR Executive Director Kate Kendell, Esq.:

“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.”

Read more about Prop 8

The National Center for Lesbian Rights is a national legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education.