Court Won't Force Governator to Defend Prop 8

When California's Proposition 8 was challenged in court earlier this year Governor Arnold Schwarzenegger and Attorney General Jerry Brown chose not to defend the voter initiative banning same-sex marriage on the grounds that they both believed it was wrong and unconstitutional. Last month judge Vaughn Walker found that Prop 8 violated the U.S. Constitution.

Last week a conservative legal group called the Pacific Justice Institute filed a law suit to force Schwarzenneger and Brown to defend the gay marriage ban in court during the upcoming appeals process. The California Supreme Court declined to hear the case on the basis that it was perfectly legal for the governor and attorney general to choose not to defend a law they disagreed with. SFGate reports:

The state officials' decision not to argue in support of Proposition 8 has raised questions about whether anyone is legally qualified to defend it in court. The Pacific Justice Institute filed suit last week, arguing that the California Constitution requires Brown to defend the state's laws.

A state appeals court dismissed the suit without a hearing, and the state's high court denied review Wednesday without comment.

It will now be up to a federal appeals court, and possibly the U.S. Supreme Court, to decide whether Prop. 8's sponsors have legal standing - the right to represent the state's interests in defending one of its laws. Attorney Brad Dacus, president of the Pacific Justice Institute, said the court order was disappointing.

"People on the left and right should both be mourning the fact that the attorney general and the governor are reneging on their oaths of office," Dacus said, arguing that the officials have a sworn duty to defend all state laws.

Darn those activist judges and their non-actions.

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Group Sues to Force Arnie and Jerry to Defend Prop 8 in Court

Image via WikipediaOne of the most interesting aspects of the ongoing legal saga of California's Prop 8 is that both Governor Arnold Schwarzenegger and Attorney General Jerry Brown declined to defend the constitutional amendment in court claiming it violated the 14th Amendment to the U.S. Constitution.

This factor is the key to whether or not this case goes to the U.S. Supreme Court. The Prop 8 proponents, who defended the discriminatory initiative, are not government officials and as private citizens are not charged with upholding or enforcing the law and, therefore, may not have the legal standing to file an appeal to Judge Vaughn Walker's July ruling that overturned the voter initiative.

If there is no appeal, then same-sex marriage remains legal in California, but the ruling stays local. Some elements of the anti-equality side have admitted that it may be worth sacrificing California in order to protect opposite marriage in the remaining 45 states.

Now a conservative California legal group, The Pacific Justice Institute, is suing to force the Governator and second-generation Attorney General Brown to force them to defend Prop 8, on the basis that they have the sworn duty to uphold the law, regardless of their personal beliefs. If they succeed, which legal experts say is unlikely, the issue of standing will be a moot point and the case can proceed through the appeals process.

The Associated Press reports via the San Jose Mercury News:

The state has until Sept. 11 to challenge Walker's ruling in the 9th U.S. Circuit Court of Appeals. Both Brown and Schwarzenegger, who also refused to support Proposition 8 in Walker's court, have said they do not plan to. The institute is arguing that as the state's chief law enforcement officer, Brown does not have discretion to defend only laws with which he personally agrees. And because the California Constitution gives the governor final say when he and the attorney general disagree on legal matters, Schwarzenegger must be compelled to file an appeal to preserve Proposition 8 as well, the group's lawsuit states.

"To allow an elected official to trump the will of the people by mere inaction and the lack of fulfillment of their duty to do their job would be an egregious violation of public trust," Pacific Legal Institute Brad Dacus said Tuesday. The institute brought its motion on behalf of Joshua Beckley, pastor of Ecclesia Christian Fellowship church in San Bernardino, and included with it a declaration of support from former U.S. Attorney General Edwin Meese III.

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Appeals Court Issues Stay on Walker's Prop 8 Ruling

It looks like it's going to be one of those legal and emotional roller coasters as the case for same-sex marriage works its way to the U.S. Supreme Court. A three-judge panel of the Ninth U.S. Circuit Court of Appeals ruled Monday to issue a stay in Judge Vaughn Walker's ruling last week striking down California's Proposition 8. While this move was not totally unexpected, many gay and lesbian couples across California had planned on marrying as early as tomorrow.

This is actually one of those good news/bad news things. While the stay means a delay in marriage equality in the Golden State, the court also expedited the appeals process, scheduling the the appeal for December 6th. Normally an appeal could be be scheduled one to two years out. The proponents of Prop 8 filed an emergency stay request citing the confusion that would ensue if gay couples were allowed to wed during the appeals process only to have Prop 8 upheld later.

On the up side, the entire appeals process hinges on whether or not the defenders of Prop 8 have any legal standing to file an appeal at all in the case of Perry vs. Schwarzenegger. Both Gov. Schwarzenegger and California Attorney General Jerry Brown have chosen not to defend Prop 8 in the original court case or in the appeals process.

The San Francisco Chronicle reports via SFGate.com:

While the Ninth Circuit judges did not give a reason for their decision, they did instruct Prop. 8 proponents to explain why they had legal standing to act in the interests of the state, which is not defending Prop. 8.

The question of standing has become crucial since Walker, in striking down Prop. 8, wrote that the initiative's defenders "may have little choice but to attempt to convince either the governor or the attorney general to file an appeal."

Chances are slim that Gov. Arnold Schwarzenegger or Attorney General Jerry Brown will do so, considering that both have pressed for same-sex marriages to be allowed to resume since Walker's ruling.

While asking the Ninth Circuit to allow same-sex marriages to proceed, San Francisco City Attorney Dennis Herrera has focused on Walker's contention and maintained that Prop. 8 supporters have no right to appeal or even ask for a stay. He took the wording in Monday's ruling to mean that the court is seriously considering that argument.

Charles Cooper, an attorney for Prop. 8's proponents, said in a court filing Monday that the initiative's sponsors had clear standing to defend their measure, given that the state had declined to do so.

Cooper also supported a long-running bid by Imperial County - which is also now in front of the Ninth Circuit - to intervene in support of Prop. 8.

Lawyers for Advocates for Faith and Freedom, which is giving free representation to Imperial County, said the county has an interest in the regulation of marriages because it licenses and performs them. Nearly 70 percent of residents casting ballots there in November 2008 voted to approve Prop. 8.

In an interview Monday, attorney Robert Tyler accused Walker of a "calculated" decision to keep Imperial County out of the case while, at the same time, casting doubt on the standing of Prop. 8 proponents.

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Schwarzenegger: "Let gays marry now."

California governor and former action hero, Arnold Schwarzenegger file a brief in the Perry v. Schwarzenegger case on Friday calling on Judge Vaughn Walker to ignore a stay filed by the losers in the case that would delay implementation of his ruling. The Sacramento Bee reports:

In an extraordinary court filing, Gov. Arnold Schwarzenegger asked Friday that gay marriages be allowed to resume immediately in California after a federal ruling that the state's voter-approved ban on gay marriage is unconstitutional.

The Republican governor filed his brief with U.S. District Court Judge Vaughn R. Walker before a Friday deadline to submit arguments on whether to continue a stay of Walker's decision against Proposition 8.

"The Administration believes the public interest is best served by permitting the Court's judgment to go into effect, thereby restoring the right of same-sex couples to marry in California," wrote Kenneth C. Mennemeier, an attorney representing Schwarzenegger, in the brief. "Doing so is consistent with California's long history of treating all people and their relationships with equal dignity and respect."

Walker concluded in a decision Wednesday that Proposition 8 violates the equal protection and due process rights of gays and lesbians. The initiative passed with 52 percent of the vote in November 2008.

As governor, Schwarzenegger is named as a defendant in the case, although he remained neutral in the lawsuit challenging Proposition 8. The governor was against the initiative when it was on the ballot and chose not to defend the constitutional amendment in court. He filed his brief Friday in his role as a named defendant and on behalf of two other administration officials.

The Schwarzenegger administration contended in the brief that there is no governmental or public interest in continuing a ban on gay marriage after Walker's decision." Instead, the administration said that allowing such marriages to resume would further the state's interest in recognizing the rights of gays and lesbians. It also said that there would be no administrative burden for the state to issue marriage licenses to gay and lesbian couples. California issued 18,000 such licenses before passage of Proposition 8.

Schwarzenegger applauded Walker's decision earlier this week.

"For the hundreds of thousands of Californians in gay and lesbian households who are managing their day-to-day lives, this decision affirms the full legal protections and safeguards I believe everyone deserves," the governor said in a statement Wednesday.

California Attorney General Jerry Brown, a Democrat, filed a similar motion. Brown had argued that  proposition 8 was unconstitutional when the measure went before the California Supreme Court last year. 

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