In 9th Circuit brief, San Francisco takes the idea of Prop 8’s proponents representing California’s interests to its logical conclusion
December 6, 2011
By Jacob Combs
For those of you who might not have had a chance to read last week’s reply briefs to the 9th Circuit regarding the California Supreme Court’s recent decision in Perry, the arguments are much what you’d expect. The plaintiffs (our side) make the case that the state court ruling, while providing the proponents of Prop 8 with standing to represent California’s interest under state law, does not in any way provide them with standing under federal law to pursue the appeal. The proponents, of course, want the 9th Circuit to interpret the CA Supreme Court’s ruling to mean they can represent the state’s interest in federal court. The plaintiffs argue that even if the proponents can represent’s California’s interest in the 9th Circuit, they still cannot show any particularized damage (that is, harm to themselves) if Prop 8 is struck down, and thus should not be granted federal standing.
It’s not surprising that the two sides disagree on the issue, and it is of course the 9th Circuit that will have to make a decision regarding federal standing. When I was reading through the briefs, however, one argument struck me as unexpected, which I thought was worth examining in a little more detail.
In its accompanying brief, the City and County of San Francisco makes the provocative point that if the proponents of Prop 8 are indeed permitted to represent California’s interest in the ballot initiative, they cannot do so in a way that is inconsistent with state law and policy. As San Francisco points out:
The California Supreme Court has authoritatively construed Proposition 8 to leave intact all substantive rights that California’s Constitution previously conferred on same-sex couples: the right to enter into officially recognized family relationships and the right to have and rear children.
The city then goes on to point out that the proponents’ defense of Proposition 8 depends on arguments that run contrary to California law, such as statements regarding the proposition’s intent to promote responsible procreation and to acknowledge supposed uncertainty about the ability of same-sex couples as parents. Under California law, same-sex couples are recognized as the equals of heterosexual couples when it comes to parenting, and marriage (whether same-sex or heterosexual) is in no way related to the ability to procreate.
The brief concludes with an devious but brilliant logical twist:
If the Court agrees that they are acting as representatives of the people of California and are proper parties to invoke appellate jurisdiction, it should treat the campaign and ballot arguments made by Proponents as the State’s own statement of its interests in enacting Proposition 8—and should hold that those interests are not legitimate state interests under even the least demanding test.
San Francisco’s brief is intriguing because it points out yet again just how thin the proponents’ case really is. In seeking to defend Proposition 8 on the state’s behalf, the proponents must prove the state has a legitimate governmental interest in enacting the initiative. When the proponents’ own admissions about the intent of Prop 8 go directly against the state’s past decisions regarding the legitimacy of same-sex relationships and families under California law, it makes their case even less convincing and shows just how unfair Proposition 8 really is.