Judges seem to side with backers of Prop. 8

The California Supreme Court signaled today that it won't stand in the way of a showdown in federal court over the state's ban on same-sex marriage.

At a hearing in San Francisco, all seven justices, including newly confirmed Justice Goodwin Liu, appeared to agree with sponsors of the voter-approved Proposition 8 that they had the right to appeal a federal judge's ruling declaring the 2008 ballot measure unconstitutional.

When Chief U.S. District Judge Vaughn Walker ruled in August 2010 that Prop. 8 violated the rights of gays and lesbians to marry their chosen partners, Gov. Arnold Schwarzenegger and Attorney General Jerry Brown declined to appeal. The Ninth U.S. Circuit Court of Appeals then asked the state's highest court whether the initiative's sponsors, a conservative religious coalition called Protect Marriage, had the right to represent the state's interests in an appeal.

At today's one-hour hearing, the answer seemed to be yes.

"Is there any authority for the governor and attorney general to second-guess the majority of Californians?" asked Justice Ming Chin.

Theodore Olson, lawyer for same-sex couples challenging Prop. 8, argued that California law does not give initiative sponsors, or any other private citizens, "the right to take over the attorney general's responsibility to represent the state."

But Justice Joyce Kennard said denying legal standing to the official sponsors of an initiative would leave the measure without defenders in court, and effectively "nullify the great power that the people have reserved to them for proposing and adopting constitutional amendments" at the ballot box.

Liu, hearing his first case since a state commission confirmed his nomination to the court last week, observed that the court has traditionally protected the initiative power as "a check on representative democracy."

Past rulings have also promoted "an adversarial process that is fair" by allowing sponsors of ballot measures to intervene in state court proceedings, Liu said.

The court's decision, due in 90 days, will be limited to the question of whether Protect Marriage has the right to appeal Walker's ruling and will not address the validity of Prop. 8, which the court upheld under state law in 2009. If that right is upheld, the federal appeals court will then decide whether Prop. 8 is constitutional, an issue that could wind up before the U.S. Supreme Court.

The case is Perry vs. Brown, S189476.