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Perry v. Schwarzenegger

Advocates for Faith and Freedom filed a motion on behalf of the County of Imperial to intervene in the federal lawsuit challenging California’s Proposition 8, Perry v. Schwarzenegger.  This is the federal case that will likely decide the “marriage” issue for the entire country if it ends up, as expected, at the U.S. Supreme Court.  Until now, the cases challenging the constitutionality of laws that limit marriage to one man and one woman have generally occurred in state courts and have only concerned each state’s constitution.

In November, 2008, California voters approved Proposition 8, which amended the California Constitution to provide:  “Only marriage between a man and a woman is valid or recognized in California.”  On May 26, 2009, the California Supreme Court upheld Proposition 8 as a validly enacted amendment to the California Constitution.

The Plaintiffs in Perry v. Schwarzenegger, sought to overturn Proposition 8 in federal court arguing that it violates the Equal Protection Clause and Due Process Clause of the United States Constitution.  Thus, we know the participation of the County of Imperial is imperative to the defense of Proposition 8 so that a negative decision can be appealed to the Ninth Circuit Court of Appeals and then to the U.S. Supreme Court. We are currently waiting for a decision from the Judge regarding whether he will permit the intervention of the County of Imperial.     

Approximately 70% of the residents of the County of Imperial voted in favor of Proposition 8.  The Board of Supervisors has voted 3-2 to file the petition to intervene in order to ensure that their residents’ interests in preserving Proposition 8 are adequately represented. Although the “YES ON 8” campaign is a party to the case and is defending Proposition 8, current precedent in the Ninth Circuit states that the campaign may not have standing to appeal if Proposition 8 is declared unconstitutional by the trial court.

In February 2012, the Ninth Circuit Federal Court of Appeals decided that the people of California had no right to pass an initiative that limits marriage to one man and one woman.  At the same time, the Court of Appeals denied a petition to intervene that was filed by Chuck Storey, County Clerk for the County of Imperial.

The question of who has a right to defend Proposition 8 has been at the center of the litigation since neither the Governor, Attorney General or other named defendants would defend the initiative adopted by a majority vote of the people of California.  After the official campaign proponents were granted the right to intervene in the District Court, questions were raised as to whether they would have sufficient standing to appeal the case and ultimately take the case to the U.S. Supreme Court.

Amidst those concerns, Advocates for Faith & Freedom filed a petition to intervene on behalf of the County of Imperial and in defense of the law in order to provide a governmental defendant willing to ensure that the higher courts decide the case.  When the District Court overturned Proposition 8, it also denied intervention to the County.  Along with the official proponents, the County and its deputy clerk appealed the decision to the Ninth Circuit.

In January 2011, represented by Advocates for Faith & Freedom, newly elected Imperial County Clerk Chuck Storey sought to intervene in order to ensure that the people’s vote is defended all the way to the Supreme Court and in coordination with the official proponents.  Since that time, the California Supreme Court determined that the official proponents should have sufficient standing under Article III of the U.S. Constitution to defend the initiative.

County Clerk Chuck Storey will now seek review from the U.S. Supreme Court in conjunction with official proponents. Clerk Storey, who serves as the Commissioner of Civil Marriage stated, “I took an oath of office to uphold the California Constitution, and Proposition 8 is part of the Constitution.”

Advocates for Faith & Freedom contends that not only was the Ninth Circuit in error for denying intervention to Clerk Storey, the decision to overturn Proposition 8 was contrary to long held constitutional principles.