Sign Up to Receive Email Action Alerts From Issa Exposed

Guest post: California Supreme Court Decision Makes the Initiative Process More Dangerous For Minorities, But The Prop 8 Case Is Back On Track

Prop 8 trial Trial analysis

Please welcome Shannon Minter and Christopher Stoll back to for a guest post breaking down yesterday’s California Supreme Court decision. 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. -Adam

By Shannon Minter and Christopher Stoll

Yesterday the California Supreme Court issued its long-awaited decision in Perry v. Brown, the federal court challenge to Proposition 8, the 2008 ballot measure that stripped the right to marry from same-sex couples in California. The court ruled that California law gives the official sponsors of Prop 8 the authority to “represent the interests of the state” and to appeal a federal court decision striking it down—even though the state’s official representatives have decided not to appeal. The decision is unprecedented and will undoubtedly have damaging repercussions for the state for years to come. But as disappointing as the ruling was, it clears the way for the federal courts to move forward and decide the fate of Prop 8.

What the California Supreme Court Held

In August 2010, Chief U.S. District Judge Vaughn R. Walker ruled that Prop 8 is unconstitutional.  Although the California Attorney General and Governor declined to appeal, the official sponsors of Prop 8 did so immediately. In a prior case addressing this situation, the U.S. Supreme Court had said that initiative sponsors cannot appeal unless state law specifically authorizes them to do so. To resolve that question, the Ninth Circuit asked the California Supreme Court to determine whether California law gives initiative proponents the power to represent the interests of the state and bring an appeal even when the official state representatives have declined to do so.

Yesterday, the California Supreme Court said the answer is yes. The court held that when state officials decide not to defend a ballot measure’s constitutionality, the individuals who put the initiative on the ballot have a right “to assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure.”  The Court derived this newly identified right from “the nature and purpose of the initiative process” and “the unique role of initiative proponents in the constitutional initiative process.”

Why the California Supreme Court’s Decision Was Wrong

The Court’s decision gives initiative proponents sweeping power and disregards the limitations imposed on the initiative process by the California Constitution. The California Constitution gives voters legislative power—specifically, the power to propose and vote on initiatives.  But nothing in our Constitution or statutes allows voters to wield the power of the executive branch, which is responsible for enforcing and defending state law. Rather than respecting the constitutional limits on the initiative process, the Court’s decision wrongly transforms the initiative process into a free-floating super power that disregards the traditional checks and balances that are essential to any healthy democracy. This is dangerous for all Californians, but it is particularly damaging for groups that are vulnerable to bias and discrimination.

Before yesterday’s decision, executive branch officials had the final authority to decide whether to appeal a federal court decision invalidating a state law.  For example, in Reitman v. Mulkey. 387 U.S. 369 (1967), the California Attorney General refused to defend a state constitutional amendment—enacted by initiative—that repealed existing protections against race discrimination in housing.  Recognizing that the  measure was indefensible, the California Attorney General submitted an amicus brief to the United States Supreme Court arguing that the amendment violated the Fourteenth Amendment guarantee of equal protection because it amounted to an official endorsement of discrimination based on race. Similarly, in 1999, Governor Gray Davis dismissed the state’s appeal of a Los Angeles federal district court decision striking down most of Proposition 187, an initiative that excluded immigrants from a wide range of state benefits and protections. Davis decided instead to settle the case through mediation. While rare, such decisions are well within the broad discretion given to the executive branch under our state Constitution and serve an important function in safeguarding minority rights.

After yesterday’s ruling by the California Supreme Court, the state’s elected officials no longer have the power to make those important decisions to protect minorities improperly targeted by the initiative process. Instead, that power now resides with the handful of private individuals who typically sponsor an initiative for the ballot—people who are unelected and unaccountable to voters, and who have no obligation to take the interests of the state as a whole or the protection of the state’s minorities into account.

What This Means for The Perry Case

The case will now head back to the Ninth Circuit, which may ask the parties to submit additional briefs discussing how they think yesterday’s decision affects the case. After that, the Ninth Circuit might schedule additional oral arguments, or it might go ahead and issue its opinion. The court will likely want to get a decision out fairly quickly, since the appeal has now been pending for over a year.

The Ninth Circuit panel will have to decide two issues: whether the Prop 8 Proponents have standing to prosecute the appeal in light of the California Supreme Court’s decision, and if so, whether to uphold Chief Judge Walker’s August 2010 decision. The Proponents’ standing to bring an appeal in federal court ultimately is an issue of federal law, and the Ninth Circuit could still decide that they don’t have standing despite yesterday’s decision. But since the California courts have now issued a clear statement that state law authorizes initiative proponents to represent the state’s interests and bring an appeal, it’s likely that the Ninth Circuit will conclude that this state-law right is sufficient to allow Prop 8’s supporters to appeal.

If that happens, the Ninth Circuit will address the heart of the case: whether Prop 8 is unconstitutional. There are good reasons to be optimistic that the Ninth Circuit panel will uphold Chief Judge Walker’s meticulous August 2010 opinion.  As that landmark decision showed in vivid detail, Prop 8 is blatantly unconstitutional for a host of reasons.

Prop 8 is unique and unprecedented. No other ballot initiative has stripped away an existing fundamental right from a targeted group and deliberately inscribed inequality into the California Constitution, and it was passed through a campaign that appealed to fear, prejudice and stereotypes. Prop 8 relegates same-sex couples to the second-class status of domestic partners—a category that serves no purpose other than to mark them as unequal and deny them the universally understood and celebrated status of married spouses.  As the U.S. Supreme Court’s 1996 decision in Romer v. Evans held, laws like Prop 8 that serve no purpose other than to mark lesbian and gay people as unequal violate the Constitution’s Equal Protection Clause in the most literal sense.

After the Ninth Circuit panel issues its decision, the losing party will have to decide whether to immediately ask the Supreme Court to review the case, or whether to first ask a larger panel of Ninth Circuit judges to review the case. It’s too early to tell how likely it is that the Supreme Court will take the case—that might depend on exactly what the Ninth Circuit says in its decision. If the case does end up in the Supreme Court, it’s unlikely that the Court would hear the case any earlier than the fall of 2012, and probably would not issue any decision until 2013.


  • 1. Gregory in SLC  |  November 18, 2011 at 7:34 am

    Thank you Shannon and Christopher for explanation and opinion. I can see now why Kathleen, Ann and others are disappointed by the outcome and what this means for California : (

    Sharing: Activists protest mistreatment of transgender people in D.C.

  • 2. Derek Williams  |  November 18, 2011 at 7:39 am

    This is a well-written, well-informed, well-resourced article. However I believe gagging our opponents martyrs them, thereby undermining our case and our cause along with it. If we want to limit their right to bring to the people a cause about which they care passionately, then we can't legitimately demand this right for ourselves.

    From a lifetime of seeing freedom of speech in action, opponents of LGBT equality undermine their own dialectic every time they open their collective mouth. On their side they have tradition, religion, fear and superstition, whereas on ours we have tradition, science, humanity and commonsense.

    The public debate that occurred between Anita Bryant and Harvey Milk gave her freedom to expose her lamentable ignorance of her side, and him the opportunity to articulate the human exigency of ours. In Australia, the right-wing Christian MP Fred Nile attempted to have God outlaw the Gay & Lesbian Mardi Gras by praying for rain. Strangely enough, it did rain – before and after but not during the parade. From there, attendance shot up from a few thousand to eventually 1 million making it today's largest and most spectacular parade of any kind in the country, and of its kind in the world.

    If we have the courage of our convictions and the science to support them, then I believe we should relish every opportunity at debate that comes our way, especially those at the court.

  • 3. Sheryl_Carver  |  November 18, 2011 at 7:50 am

    There's a big difference between freedom of speech & granting what will amount to only well-funded groups a NEW right under California's constitution. Our initiative process is already a mess; now it's even worse. As a CA resident, I am appalled. As a member of the LGBT family that is the target of discrimination, I am also saddened.

  • 4. fiona64  |  November 18, 2011 at 10:15 am

    Yep. This is the CA state equivalent of Citizens United.

  • 5. Gregory in SLC  |  November 18, 2011 at 7:53 am

    Conviction and science are not enough, also takes money…and the oppressors are often the white (privileged) majority–not a fair playing field.

  • 6. Derek Williams  |  November 18, 2011 at 8:05 am

    Christians like to tell the story of how the stripling lad David felled the Gargantuan giant Goliath.

    The moral of the fable is that being on the weaker side does not always sound the death-knell you might expect. We're a minority, always have been, always will be, yet we already have emancipation and civil rights undreamed of in my youth at least. In reflecting upon how the impossible was achieved, we might well acknowledge that we're not the only ones with a sense of fair play and decency, no matter how uneven the playing field is.

  • 7. Ronnie  |  November 18, 2011 at 8:06 am

    Executive branch of state government reduced to kindling… uncontrollable brushfires (metaphorically speaking) will ensue……. : / …Ronnie

  • 8. DaveP  |  November 18, 2011 at 8:59 am

    Just wanted to say big thanks to Shannon Minter and Christopher Stoll for this well-written and informative summary (and of course more thanks for all the great work you two have been doing on this issue!).

  • 9. Bob  |  November 18, 2011 at 9:09 am

    What we're seeing is a certain kind of oblivious to obvious financial inequality that was prevalent during the 19th and early 20th Centuries. At that time there was little legal support for labor unions based on the theory that every laborer was a free agent who could sell, or refuse to sell, his labor to an employer. The two were viewed as equals despite the fact that, in reality, the situation was quite different. It wasn't until the Depression era that the law fully recognized that there was a power disparity between worker and employer since employers could simply shop around until they found someone willing to work longer hours for longer wages while individual workers, unless they bound together, would soon become hungry and homeless. Shannon has done an excellent job of showing how the courts now refuse to acknowledge the reality that ballot initiatives are less about the "will of the voters" than about the moneyed interests behind the initiatives themselves.

  • 10. Bob  |  November 18, 2011 at 9:11 am

    I MEANT to type "…a certain kind of obliviousNESS…" above.

  • 11. Bob  |  November 18, 2011 at 9:12 am

    …and to include Chris's name along with Shannon's.

  • 12. Sagesse  |  November 18, 2011 at 9:49 am

    What struck me about the oral argument before the CA Supreme Court (and the decision) was the unanimity among the justices. Not one of them appeared concerned about the 'broken' initiative process that gives broad licence to abridge the rights of minorities, and requires only a simple majority to amend the constitution. Not one of them was concerned about disturbing the balance of powers by nullifying the authority of the executive branch (the elected Governor and AG). All of them revere the CA initiative process.

    'The people' of CA can pass any unconstitutional law they want, and now it can be appealed as high as it goes (assuming the US Supreme Court doesn't call them on misinterpreting the California constitution). If the law of the people is unconstitutional, it will still be struck down, it will just be a longer and more expensive process.

  • 13. Susan Russell  |  November 18, 2011 at 10:01 am

    Exactly! "The #prop8 challenge is not just about marriage for some Californians but about equal protection for all Americans" — from my HuffPost piece today on yesterday's CA Supreme Court Prop 8 ruling

  • 14. Straight Dave  |  November 18, 2011 at 11:28 am

    I miss seeing the former "Reverend" in your P8TT handle, and wasn't sure it was the same person. That was a strong reminder to me that this is not about religious beliefs, but more about the misuse of religion to prop up bigotry. The dividing line is clearly not … "Religious – Yes or No?"
    You should flaunt that aspect, as I think it has impact (see MD).

  • 15. Prop 8 Trial Tracker &raq&hellip  |  November 18, 2011 at 10:07 am

    […] Shannon Minter and Christopher Stoll pointed out in their excellent guest post this morning (if you haven’t read it yet, check it out!), this appeal has been pending for […]

  • 16. maggie4noh8  |  November 18, 2011 at 10:18 am

    Thank you very much Shannon and Chris – I think we all appreciate the clear, rational manner of this!

    As a non-native Californian, and not fully understanding the initiative process here, I especially appreciate the explanation as to how this ruling further muddies this process, and the impact it will have upon minority groups. Thanks for opening my eyes on that one! In my naivete, I thought this ruling was "consistent" with the spirit of "the initiative process".

    I had half hoped the ruling would go the other way, and the 9th to quickly uphold the Walker decision, and equality would ring true in California. But, (and darn my mother!), "patience is a virtue" and I suspect Lady Justice is doing her thing so that eventually, this case has a national impact.

    In the meantime though, I'd settle for a morsel of justice: RELEASING OF THE TRIAL RECORDINGS!!!!

  • 17. laurencita7  |  November 18, 2011 at 1:38 pm

    I don't understand this uproar around the proponents' ability to appeal because I don't remember similar outrage when the proponents were allowed to stand in for the CA gov. at the trial level. I think if you are allowed to represent the government at the trial level, of course you should allowed to exhaust the appellate process. Correct me if I am wrong — was there this outrage when the proponents were allowed to defend at the district court? If so, this outrage is fine. If not, it seems too little, too late for me.

    The proponents should be able to appeal because any party should be able to appeal, we have to safeguard the appellate process in case there is an error or gross discrimination on the part of the judge, etc. There is an appellate process for a reason.

    If you are against the parties appearing in court at all, that makes sense to me. But this argument starting now, and not before the beginning of the original trial, doesn't make sense. If I am missing something, please let me know!

  • 18. fiona64  |  November 18, 2011 at 3:19 pm

    Because there is a difference between state law and Federal law. Having standing in a state does not guarantee you standing in Federal court because the requirements differ.

  • 19. laurencita7  |  November 19, 2011 at 1:09 pm

    but the first trial was in a federal district court! i don't understand what you mean about the difference between federal and state law.

  • 20. MightyAcorn  |  November 19, 2011 at 8:17 pm

    And there's a difference between bringing a case initially and appealing it if you lose, so it is a bit confusing.

  • 21. Ann S.  |  November 19, 2011 at 10:24 am

    At the trial level the government parties made appearances, so there was a triable dispute between two parties. The government parties have expressly declined to participate at the appellate level. It's not the same.

  • 22. laurencita7  |  November 19, 2011 at 1:10 pm

    but didn't the government make appearances on our side? i can't really remember, but i don't remember the gov. being on the proponents' side.

  • 23. Ann S.  |  November 19, 2011 at 5:18 pm

    At trial the government entered an appearance as defendant. They did not mount an active defense.

    In all of the appellate matters the government has opposed the proponents.

  • 24. Leo  |  November 19, 2011 at 7:40 pm

    At the trial level, it was (naturally) the plaintiffs who initiated the case. The proponents were allowed to defend an existing case. Here, the question is whether they can initiate an appeal all by themselves. If someone else had legitimately filed a notice of appeal, I trust there would be no opposition to Proponents participating in the appeal and presenting arguments.

  • 25. Gay Marriage Opponents Wi&hellip  |  November 18, 2011 at 4:08 pm

    […] […]

  • 26. Chris in Lathrop  |  November 18, 2011 at 4:47 pm

    So, it's an actual case of activist judges creating special rights, huh? Where is the Tea Party to decry this one???

  • 27. NoOnProp8Events  |  November 18, 2011 at 6:22 pm

    I think people are only looking at this from one side of the coin. I doubt there would be much outrage in the gay community were the situation reversed and we were trying to do an end run around a homophobic governor who refused to defend OUR proposition in court. No doubt we would be decrying the lack of representation and demand standing at the federal level ourselves would we not?

    Frankly, it would be nice to see laws passed that state that voters cannot vote on the rights of law abiding citizens, but our system is based on courtroom verdicts not "thou shall not discriminate" edicts. So it is what it is.

  • 28. Josh  |  November 19, 2011 at 7:28 am

    I've been thinking this all along. These discrimination initiatives never should have gotten on the ballot in any state. They single out a minority and that is obviously wrong. Ballot questions should have to be constitutional before they can get approved to even gather signatures. Stop wasting everyones time and money on all this bullshit.

    On a related note, all state constitutional changes should require 2/3 voter approval. 50% is just crazy to make such a major change. If it was 2/3 in CA we wouldn't be wasting so much time and money on this case and I don't think the upcoming vote in MN would pass.

  • 29. Ron  |  November 19, 2011 at 12:58 pm

    @ NoOnProp8Evnets. In the case you describe, we would have standing because you can show "harm" that is one of the requirements of standing. If a law effects you you have standing. if it is just something you want, like Prop8, then no standing is assumed.

    @ Josh. The 2/3 thing is actually in the CA constitution, But here it represents another bad decision by CA Supremes. After prop 8 passed, it did go to them and the challenge was that Prop 8 was a Revision of the consititution, something that does require 2/3. But the Supremes ruled Prop 8 to only be an amendment, something that only requires 50%. How they could declare a fundamental right to marry on one hand to open up marriage to gays and then say taking that away is just an amendment not a revision is beyond me.

  • 30. ididntthinkofthat  |  November 19, 2011 at 4:12 pm

    Good article on origins of California Initative process:

  • 31. Prop 8 Trial Tracker &raq&hellip  |  November 20, 2011 at 2:45 pm

    […] morning, Shannon Minter and Christopher Stoll from the National Center for Lesbian Rights published a guest piece here at P8TT making an argument for why the previous day’s decision was bad for California, […]

  • 32. Open Thread And Link Farm&hellip  |  December 6, 2011 at 3:17 am

    […] A couple of lawyers from the National Center For Lesbian Rights argue that the CA Supreme Court was wrong to allow prop 8 sponsors to have standing to appeal. I don’t agree with them, but I think this is the most persuasive argument I’ve yet read on their side of this issue. […]

  • 33. .22lr ammo for sale  |  April 17, 2014 at 11:54 pm

    I_m not that much oof a internet reader to be honest but your blogs really nice, keep it up!
    I’ll go ahead and bookmark your website to come back later on.

    Manny thanks

    My weblog … .22lr ammo for sale

  • 34. Jana Kelley  |  April 28, 2014 at 6:13 pm

    Wonderful beat ! I wish to apprentice while you amend your web
    site, how could i subscribe for a blog web site? The account aided me
    a acceptable deal. I had been tiny bit acquainted of this your broadcast provided bright clear idea

    My web-site – Jana Kelley

  • 35. Anonymous  |  April 28, 2014 at 6:52 pm

    I quite like reading through a post that will make people think.
    Also, thanks for allowing for me to comment!

    my site :: Paddy o

Having technical problems? Visit our support page to report an issue!