The California Supreme Court ruled Wednesday that Gov. Arnold Schwarzenegger and Attorney General Jerry Brown have no legal obligation to defend Proposition 8. The 2008 voter-approved measure banning same sex marriage was declared unconstitutional by a federal judge on Aug. 3.
Analysts call Wednesday’s ruling a major setback for Prop. 8 supporters.
“There is a decent chance that Prop. 8 will be wiped out and that same sex marriages will be declared legal in California,” says Royal Oakes, partner at the Los Angeles-based law firm Barger and Wolen.
Protect Marriage, a coalition of religious and conservative groups that sponsored and had defended Proposition 8, had been trying to force the state to defend the law, arguing that the governor and attorney general had an obligation to do so. When US District Judge Vaughn Walker overturned Prop. 8, legal analysts raised questions about Protect Marriage’s legal standing to file an appeal of the decision. Wednesday’s ruling raises serious questions about who will defend Prop. 8 as the Ninth US Circuit Court of Appeals is scheduled to hear oral arguments in December.
The governor and attorney general have come under heavy criticism for refusing to defend the case, each holding that they have no personal disagreement with same-sex marriage.
“California’s top public lawyer and its chief executive have an obligation to defend the laws of the state whether they like them or not – and that should include the ban on same-sex marriage,” said an editorial in the Los Angeles Times.
The sentiment is echoed by Chris Gacek, senior fellow at the Family Research Council, a conservative Christian group and lobbying organization.
“This brings up the real possibility of collusive litigation,” he says, “that the attorney general could have this weird kind of veto over statutes passed by the legislature and governor,” he says, adding, “just don’t defend them in court and they become null and void.”
But legal scholars said the court has made the right decision.
“Both the Governor and the Attorney General were convinced by the merits of Judge Walker’s comprehensive factual findings and legal conclusions,” says Joan Hollinger, professor of law at the UC Berkeley School of Law. “And,” she adds, “as is their prerogative under our state law, they have decided not to appeal his ruling to the Ninth Circuit Court of Appeal. They are both discharging their obligations under California law and do not want to waste public resources on defending a proposition they and their lawyers believe has been appropriately found to violate the federal Constitution.”
The next question, say Ms. Hollinger and UC Irvine Law School Dean Erwin Chemerinsky, is who will represent the Prop. 8 case in appeal.
“The defense of Proposition 8 in the Ninth Circuit will [now] depend on whether the defenders of Proposition 8 are deemed to have standing to appeal,” says Mr. Chemerinsky. “The Supreme Court has said that standing to appeal is essential. Standing requires a direct, personal injury. I think it is doubtful that the defenders of Proposition 8 will meet that requirement.”
Chermerinsky predicts the appeal will be dismissed for lack of legal standing and Walker’s ruling will stand.
The Los Angeles Times says rather than let the appeal die for lack of standing,”the state could best fulfill its obligation by hiring an outside attorney to represent it in the appeal,” and San Diego Attorney Dwight Ritter predicts that will happen.
“It is my expectation that the California Supreme Court, and even possibly the Ninth Circuit Court of Appeals, will allow some entity, possibly private, to make the arguments on behalf of Proposition 8 that are necessary for a full and complete hearing as to the law’s validity,” says Mr. Ritter, a partner at Ritter & Associates. “My prediction is that some private group will be given the opportunity to argue the law’s constitutionality.”
We’re not backing down in the face of Trump’s threats.
As Donald Trump is inaugurated a second time, independent media organizations are faced with urgent mandates: Tell the truth more loudly than ever before. Do that work even as our standard modes of distribution (such as social media platforms) are being manipulated and curtailed by forces of fascist repression and ruthless capitalism. Do that work even as journalism and journalists face targeted attacks, including from the government itself. And do that work in community, never forgetting that we’re not shouting into a faceless void – we’re reaching out to real people amid a life-threatening political climate.
Our task is formidable, and it requires us to ground ourselves in our principles, remind ourselves of our utility, dig in and commit.
As a dizzying number of corporate news organizations – either through need or greed – rush to implement new ways to further monetize their content, and others acquiesce to Trump’s wishes, now is a time for movement media-makers to double down on community-first models.
At Truthout, we are reaffirming our commitments on this front: We won’t run ads or have a paywall because we believe that everyone should have access to information, and that access should exist without barriers and free of distractions from craven corporate interests. We recognize the implications for democracy when information-seekers click a link only to find the article trapped behind a paywall or buried on a page with dozens of invasive ads. The laws of capitalism dictate an unending increase in monetization, and much of the media simply follows those laws. Truthout and many of our peers are dedicating ourselves to following other paths – a commitment which feels vital in a moment when corporations are evermore overtly embedded in government.
Over 80 percent of Truthout‘s funding comes from small individual donations from our community of readers, and the remaining 20 percent comes from a handful of social justice-oriented foundations. Over a third of our total budget is supported by recurring monthly donors, many of whom give because they want to help us keep Truthout barrier-free for everyone.
You can help by giving today. Whether you can make a small monthly donation or a larger gift, Truthout only works with your support.