By David Siders and Peter Hecht
dsiders@sacbee.com
Published: Friday, Nov. 18, 2011 – 12:00 am | Page 1A
Last Modified: Friday, Nov. 18, 2011 – 7:36 am

In a major lift for supporters of California’s same-sex marriage ban, the state’s highest court ruled Thursday that proponents of ballot initiatives can defend their measures in court when the governor and attorney general refuse to do so.

The California Supreme Court’s ruling sets the stage for the continuation of a legal battle over gay marriage that is drawing national attention and is widely expected to reach the U.S. Supreme Court.

In the wake of the opinion, the federal appeals court that is considering the legality of the state’s gay marriage ban is expected to rule on constitutional questions at the heart of the measure.

The ban, Proposition 8, was approved by voters in 2008 but was ruled unconstitutional by a federal judge last year. Legal arguments over the measure’s constitutionality had been on hold for months as the federal appeals court awaited this ruling.

The question of legal standing became significant when Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown, now governor, declined to defend Proposition 8 in court. Had the state Supreme Court ruled against proponents of the measure, ProtectMarriage.com, the case might have stopped short on appeal.

“When the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so,” the state Supreme Court said in a unanimous opinion, “the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.”

The state court’s ruling doesn’t bind the 9th U.S. Circuit Court of Appeals, but the appeals court solicited it and lawyers for both sides expect the opinion to stand.

In a precedent-setting ruling applying broadly to California initiatives, the court said allowing proponents to defend their measures is “essential to the integrity of the initiative process,” limiting the ability of elected officials to undercut initiatives once they are passed.

“Neither the Governor, the Attorney General, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters,” the court said, adding that it “would exalt form over substance to interpret California law in a matter that would permit these public officials to indirectly achieve such a result. … ”

The court cited numerous cases in which the proponents of initiatives have been allowed to defend them.

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