Perry v. Brown
52 Cal. 4th 1116
Cal.2011Background
- Prop 8 (2008) added Cal. Const., art. I, § 7.5, restricting marriage to opposite-sex couples.
- Official proponents filed Prop 8, formed ProtectMarriage.com, and sought to defend the measure as it moved through litigation.
- Perry v. Schwarzenegger (N.D. Cal.) challenged Prop 8 under the U.S. Constitution; state officials declined to defend Prop 8.
- Proponents intervened in district court and defended Prop 8; the district court held Prop 8 unconstitutional.
- Ninth Circuit questioned California standing to defend Prop 8 if public officials refused to defend; sought state-law answer from California Supreme Court.
- California Supreme Court agreed to decide whether official proponents may defend a voter-approved initiative when public officials decline to defend it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do official proponents have standing to defend a voter-approved initiative when officials decline to defend? | Perry asserts proponents have standing under California law. | Respondents contend only public officials may defend the state’s interest. | Yes under California law; proponents may intervene to defend and appeal when officials decline. |
| Is standing based on a special, particularized interest or the state’s interest? | Proponents have a personal right to defend the measure. | Public interest aligns with state’s defense; no need for personal stake. | Court need not decide the particularized-interest question; state-interest authority suffices to grant standing. |
| What constitutional and statutory bases support proponents’ ability to intervene? | Intervention is beyond the Attorney General’s exclusive remit. | Intervention should be limited to executive branch; supporters lack independent authority. | Article II, § 8 and Elections Code authorize proponents to intervene and defend/appeal. |
| Does separation of powers constrain proponents’ participation? | Legislature or advocates cannot usurp executive function. | Legislature and proponents have long intervened; not a separation issue when officials decline. | Not a separation-of-powers problem; proponents may participate when officials decline. |
| Do California authorities have authority to defend the initiative in state or federal courts? | Attorney General controls defense and appeals; others cannot override. | Other public officials may defend; AG’s discretion does not preclude others. | Proponents’ authority arises from Article II, § 8 and Elections Code; they can defend and appeal. |
Key Cases Cited
- Karcher v. May, 484 U.S. 72 (U.S. Supreme Court, 1987) (state legislature may defend when executive decline occurs)
- Arizonans for Official English v. Arizona, 520 U.S. 43 (U.S. Supreme Court, 1997) (grave doubts about proponents’ standing; discussed in context of state-law authority)
- Building Industry Ass’n v. City of Camarillo, 41 Cal.3d 810 (Cal. 1986) (proponents’ intervention to defend initiative; guard people’s initiative rights)
- Kopp v. Fair Pol. Practices Com., 11 Cal.4th 607 (Cal. 1995) (post-election standing and intervention contexts)
- In re Marriage Cases, 43 Cal.4th 757 (Cal. 2008) (context of Prop. 8; initiative process and rights)