The Ninth Circuit’s Prop. 8 decision contains good news for the initiative process


By now most readers have probably heard about the ruling by the Ninth Circuit yesterday in the Proposition 8 case. In a 2 to 1 decision, the Ninth Circuit found that Proposition 8 – which defined marriage as only between one man and one woman – is unconstitutional. Whether you agree or disagree with that decision (and PLF takes no position on the matter), there is a part of the ruling that all Californians should celebrate.

In the lower court, the State’s elected leaders refused to defend Proposition 8. Thus the initiative’s backers intervened to defend the initiative. The opponents of the law objected, claiming that the backers of Prop. 8 had no standing to defend the law. Last year the Ninth Circuit asked the California Supreme Court to issue a ruling on whether the sponsors of a voter-approved measure may defend the initiative in court when the state’s elected officials refuse to do so or can’t be trusted to do so credibly.

As mentioned previously, PLF submitted a friend-of-the-court brief urging the state Supreme Court to find that initiative sponsors had the right to defend their work. In a unanimous decision, the California Supreme Court found that initiative sponsors have that right. “It is essential to the integrity of the initiative process . . . that there be someone to assert the state’s interest in an initiative’s validity on behalf of the people when the public officials who normally assert that interest decline to do so,” Chief Justice Tani Cantil-Sakauye wrote. To find otherwise would have given elected officials a back-door veto on any citizen initiative.

Although the Ninth Circuit was not bound to follow the California Supreme Court’s opinion, it chose to do so:

It is for the State of California to decide who may assert its interests in litigation, and we respect its decision . . .  We therefore conclude that, through the proponents of ballot measures, the People of California must be allowed to defend in federal courts, including on appeal, the validity of their use of the initiative power.

As yesterday’s opinion shows, even a vote of the people can enact an unconstitutional law, but regardless of your feelings on that opinion – or gay marriage in general – all Californians should celebrate that the federal court system has upheld the integrity of California’s 100 year old initiative process.