11/17/2011 05:45 pm ET Updated Feb 02, 2016

Some Troubling Aspects of Today's California Supreme Court Response to the 9th Circuit Court of Appeals Regarding Prop 8

Fairly predictably, earlier today, California's Supreme Court issued a "loss" for those of us who oppose continuing the discriminatory effects of California's Proposition 8 ("Prop 8").

By way of a confusing background, in May 2008, the state supreme court struck down the law prohibiting queer couples from marrying, based on the state's constitution. A few months later, in November 2008, voters approved Prop. 8, which amended the constitution to limit marriage only to non-queer couples.

In May 2009, the California Supreme Court stated that Prop 8 was legal but didn't invalidate any marriages that occurred between May 2008 and Prop 8's effective date. In May 2009, against the wisdom of many queer-advocacy groups, a new organization, AFER, sued California's governor, attorney general, and director of public health in federal court. None of those named defendants, however, actually defended Prop. 8 in court.

The federal trial court's detailed opinion holding that Prop 8 violated the U.S. constitution led Prop. 8's "official proponents" to appeal to the 9th Circuit Court of Appeals, the federal appellate court for California and several other western states.

The federal appeals court then asked California's supreme court to decide, as a matter of state law, whether a voter-approved ballot-initiative proponent had a "particularized interest in the initiative's validity or the authority to assert the state's interest in defending the initiative."

This morning, a unanimous opinion by California's Supreme Court , authored by Chief Justice Tani Gorre Cantil-Sakauye -- elected last November and sworn into office just earlier this year -- stated that when "the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so," the state constitution and elections code instead permit "the official proponents of a voter-approved initiative measure" to "assert the state's interest in the initiative's validity ... to appeal a judgment invalidating the initiative."

Simply put, the California Supreme Court today indicated that those opposed to queer couples having the right to marry in California possess legal standing to appeal a trial court's opinion, despite being a non-party to the litigation. In so doing, California's Supreme Court basically indicated that had Gov. Schwarzenegger put together a half-hearted defense of the Prop. 8 case (legal ethics issues aside), today's decision would not have turned out that way that it did, the 9th Circuit would likely dismiss the case for lack of standing, lift the "stay" on the federal trial court's re-recognition of marriage rights for queer couples, and queer couples would be civilly marrying again in California in the very near future.

The opinion is foolish in its attempt to distance itself from the reality of the case, by saying that "the state law issue" before the court was "totally unrelated to ... the constitutional validity of Proposition 8" and only dealt with procedural issues. Yet, if the state law issue were "totally unrelated" to Prop 8, then why would today's concurring opinion state that "this case marks the fourth time in recent years that this court has addressed issues related to the ongoing political and legal struggle about whether same-sex marriages should be recognized as valid in California?" That statement doesn't seem to demonstrate totally unrelated issues.

I understand the history behind California's progressive movement creating the state's initiative because of "dissatisfaction with the then-governing public officials and a widespread belief that the people had lost control of the political process." But was that the case here?

The claim in today's opinion indicated that giving elected officials "sole authority to decide" whether to defend an initiative in court might "allow public officials, through inaction, effectively to annul initiatives that they dislike," just isn't correct. "Sole" authority means the authority of one (sole, solo, etc.).

In the Prop 8 litigation, it wasn't a sole or solo defendant not pursuing the case; it was a trio of defendants who chose not to pursue the case. The Republican governor didn't pursue defending the case, the Democratic attorney general didn't pursue defending the case, and neither did the state's public health director. The California Supreme Court's assertion that "the initiative power would be significantly impaired if there were no one to assert the state's interest in the validity of the measure when elected officials decline to defend it in court or to appeal a judgment invalidating the measure" appears disingenuous. It wasn't the case that "no one" could assert the state's interest. Here, three named parties, of varying political persuasions, could have asserted the state's interest, and those three parties simply declined to do so.

California's Supreme Court has arguably allowed for unnecessary litigation by its expansive view granting non-litigants standing to appear in cases such as this as intervenors. Demonstrating this proposition, today's opinion stated that the Prop 8 proponents are "private individuals who have not been elected to public office, take no oath to uphold the California Constitution or laws, cannot be recalled or impeached, and are not subject to the conflict of interest rules or other ethical standards that apply to public officials." Yet they now possess "the authority to participate as a party in a court action and to assert legal arguments in defense of the state's interest in the validity of the initiative measure when the public officials who ordinarily would assert the state's interest in the validity of the measure have not done so."

And such concern for opening these litigation floodgates on the basis of standing actually tends to square with Chief Justice Roberts' conservative majority on the issue, not with a progressive or liberal faction.

And speaking of conservative majorities, should enough advocates of queer couples' marriage rights be appalled by today's decision, perhaps they should take the (albeit frightening) page from the anti-queer advocates in Iowa and attempt to recall these judges from the bench by a popular vote.