Though ProtectMarriage.com has gone ahead and filed its appeal with the 9th Circuit, the original judge the group tried defending Prop 8 in front of doesn’t think they’ve got much of a chance at getting anyone to hear it.
In denying the defense’s motion to hold down a stay on his Prop 8 ruling (at least until next Wednesday), Judge Vaughn Walker indicated he didn’t think ProtectMarriage.com/Yes On 8 has standing.
Although he allowed the coalition of religious and conservative groups that sponsored the measure to defend the lawsuit during the 13-day trial over which he presided, the judge said appellate courts have different rules for deciding when a party is eligible to challenge a lower court.
Based on his interpretation of those rules, it appears the ban’s sponsors can only appeal his decision with the backing of either Gov. Arnold Schwarzenegger or Attorney General Jerry Brown, Walker said. But that seems unlikely as both officials refused to defend Proposition 8 in Walker’s court and said last week they see no reason why gay couples should not be able to tie the knot now.
Naturally, Yes On 8 doesn’t see it that way:
Proponents also have standing to appeal because of their own particularized interest in defending an initiative they have successfully sponsored, an interest that is created and secured by California law.See, e.g., Diamond v. Charles, 476 U.S. at 54, 65 n.17 (1986) (state law may “create new interests, the invasion of which may confer standing”). Under California law, the right to “propose . . . constitutional changes through the initiative process” is a “fundamental right,” Costa v. Superior Court, 128 P.3d 675, 686 (Cal. 2006), that affords proponents a “special interest” and “particular right to be protected over and above the interest held in common with the public at large,” an interest that is “directly affected” when an initiative they have sponsored is challenged in litigation, Connerly v. State Personnel Bd., 129 P.3d 1, 6-7 (Cal. 2006) (quotation marks omitted).
For all of these reasons, California courts have repeatedly allowed proponents to intervene to defend initiatives they have sponsored.8Indeed, when the district court permitted Proponents to intervene in this case, it expressly recognized that, “under California law … proponents of initiative measures have the standing to … defend an enactment that is brought into law by the initiative process.” July 2, 2009 Tr. of Hr’g, Doc. No. 78 at 8.