Statement by NCLR Executive Director Kate Kendell, Esq.

(San Francisco, November 17, 2011)—Today, the California Supreme Court issued a decision holding that California law empowers the sponsors of Proposition 8 to appeal the federal district court’s decision in Perry v. Brown finding Prop 8 unconstitutional, even though the state’s Attorney General and Governor both agree that the district court decision striking down Prop 8 should not be appealed.

Perry v. Brown is the federal challenge to Proposition 8, the 2008 ballot measure that stripped the right to marry from same-sex couples in California. Federal District Court Judge Vaughn R. Walker ruled in August 2010 that Prop 8 is unconstitutional, and Prop 8’s sponsors attempted to appeal that ruling to the Ninth Circuit Court of Appeals. Under existing U.S. Supreme Court decisions, the sponsors of a state ballot initiative generally do not have a legal right to appeal a federal district court decision finding that an initiative is unconstitutional unless state law specifically gives them the authority to represent the interests of the state in federal court. The Ninth Circuit asked the California Supreme Court to issue an advisory opinion on the power of initiative proponents under California law. The case will now go back to the Ninth Circuit to decide whether, in light of today’s ruling by the California Supreme Court, federal law allows the Prop 8 sponsors to pursue an appeal. If the Ninth Circuit rules that they can appeal, the court will decide whether to affirm Judge Walker’s ruling striking down Prop 8.

Statement by NCLR Executive Director Kate Kendell, Esq.:

“We disagree profoundly with the California Supreme Court’s holding that a handful of unelected initiative sponsors have the power to represent the interests of the entire public and to override the decisions of the state’s elected executive officers. Nonetheless, we are relieved that the case is once again moving forward and the Ninth Circuit will now address whether the initiative proponents can continue this appeal and, if so, whether Prop 8 is constitutional. We hope the Ninth Circuit will issue its decision soon and hasten the day when this damaging law is off the books. Every day that goes by, same-sex couples in California are being denied not only the basic right to marry, but the right to be treated with equal dignity and respect. Same-sex couples in California have lived under the shadow of this unfair law for far too long.”

Read NCLR’s analysis of the decision

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.