California Supreme Court Extends Unprecedented Power to Initiative Supporters in Proposition 8 Case

By Shannon Minter, Esq., and Christopher Stoll, Esq.
National Center for Lesbian Rights


(San Francisco, November 17, 2011)—The California Supreme Court issued a decision today that gives ballot initiative sponsors unprecedented new powers. The ruling held that California law empowers the sponsors of Proposition 8—the 2008 ballot initiative that stripped the right to marry from same-sex couples—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 decision should not be appealed.

Federal district court Judge Vaughn R. Walker ruled in August 2010 that Prop 8, which stripped the right to marry from same-sex couples in California, is unconstitutional. The two elected officers who have official authority over legal challenges to California’s laws—California Attorney General Kamala Harris and Governor Jerry Brown—both agreed that Prop 8 is unconstitutional and that an appeal of the ruling would not be in the state’s best interests. Undeterred, Prop 8’s sponsors attempted to appeal Judge Walker’s ruling, on their own, to the Ninth Circuit Court of Appeals.

Under U.S. Supreme Court decisions, the sponsors of a state ballot initiative generally do not have a legal right to appeal a federal court decision finding that an initiative is unconstitutional unless state law expressly empowers them to do so. As a result, before considering the appeal, the Ninth Circuit asked the California Supreme Court to decide whether California law gives initiative sponsors that unusual power.

The California Supreme Court’s decision today held that unelected initiative sponsors do have that right under California law, despite the fact that nothing in the California Constitution or state law specifically gives them that power. In fact, the California Constitution makes clear that proposing initiatives is a purely legislative power—similar to that of the state’s Legislature—and not an executive power, like that of the Attorney General or Governor. The legislative branch’s job is to propose and enact laws, while the executive branch’s job is to make decisions related to their enforcement—including, at times, the decision not to appeal a court ruling striking down an unconstitutional law. Under the principle of separation of powers, the legislative branch is not allowed to usurp the tasks specifically designated for the executive branch.

The California Supreme Court ignored that basic constitutional principle today in bestowing unprecedented new power on initiative proponents. Today’s decision will have serious repercussions for the unpopular minority groups—LGBT people, immigrants, people of color, criminal defendants, and others—who are frequently the target of ballot initiatives in California and elsewhere. Under our constitutional system, the executive branch is charged with representing the interests of all Californians, which on rare occasions, includes a duty to decline to defend measures that discriminate against a disfavored group without serving any legitimate public purpose.

For example, in Reitman v Mulkey, 387 U.S. 369 (1967), the California Attorney General urged the United States Supreme Court to strike down a California initiative that repealed recently enacted protections against race discrimination. More recently, in 1999, Governor Davis dismissed the state’s appeal of a Los Angeles federal district court decision striking down most of Proposition 187, an initiative that attempted to barred immigrants from many important public benefits. The California Supreme Court’s decision will prevent state officials from exercising this discretion in the future, since an initiative’s sponsors will now have the power to force an appeal even over the objections of the executive branch.

The Ninth Circuit, and ultimately the U.S. Supreme Court, will now have the final say over Prop 8’s fate. In light of the California Supreme Court’s ruling, it is likely that the Ninth Circuit will hold that the Prop 8 sponsors have standing to appeal Judge Walker’s ruling that Prop 8 violated the most basic tenets of our Constitution by stripping away the right to marry from an unpopular group. While the California Supreme Court may have abandoned its responsibility for enforcing constitutional limits on the initiative process, the federal courts can still demonstrate that the principle of equal protection of the laws remains a vital cornerstone of our democracy.


Shannon Minter is the Legal Director for the National Center for Lesbian Rights and Christopher Stoll is a Senior Staff Attorney for the National Center for Lesbian Rights.


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