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Governor and Attorney Cannot Be Forced to Defend Proposition 8
The Third District Court of Appeal in Sacramento denied the Pacific Justice Institute's request to compel Governor Arnold Schwarzenegger and Attorney General Jerry Brown to defend Proposition 8 in the challenge to the same-sex marriage ban currently pending in federal court.
Both Schwarzenegger and Brown supported U.S. District Judge Vaughn Walker's August 4 decision striking down Proposition 8 as a violation of the federal constitution's due process and equal protection guarantees.
The Pacific Justice Institute said it would appeal the state appellate court's decision to the California Supreme Court.
If the state supreme court does not force the governor and attorney general to defend Proposition 8, and if the federal court does not allow "Protect Marriage," the group of conservative religious organizations that supported Proposition 8, to intervene in the case, Judge Walker's decision could be upheld on procedural grounds.
Schwarzenegger and Brown's decision not to defend Proposition 8 has precedents.
In the 1960s, California Attorney General Thomas Lynch did not defend Proposition 14, a 1964 initiative which amended the state constitution to rescind fair housing laws and to prevent the state legislature from ever passing laws barring racial discrimination in housing. In 1967, the United States Supreme Court invalidated Proposition 14 as a violation of the equal protection guarantee of the federal constitution.
In the 1990s, Governor Gray Davis did not pursue the state's defense of Proposition 187, a 1994 initiative that would have required state workers to deny help to anyone they suspected of being an undocumented immigrant. The law never went into effect because the state did not defend the proposition after federal and state judges issued injunctions preventing its implementation.
Appeals Court Puts Same-Sex Marriages on Hold
Without comment, a three-judge panel of the Ninth Circuit Court of Appeals extended a stay on Judge Vaughn Walker's August 4 decision striking down Proposition 8.
Gay couples will not be allowed to marry until at least early December, when the appellate court will hear arguments whether Proposition 8, the voter-approved ban on same-sex marriages, is unconstitutional.
Judge Walker had ordered his ruling to take effect at 5:00 on August 18 unless the appellate court issued a stay.
In extending the stay, the Ninth Circuit judges instructed proponents of Proposition 8 to explain why they have legal standing in the case. Some legal experts question whether any entity but the state of California, which is responsible for enforcing the ban, can challenge Judge Walker's decision on appeal.
Governor Arnold Schwarzenneger and Attorney General Jerry Brown, as representatives of the state, were defendants in the case before Judge Walker. But soon after Walker's decision both Schwarzenneger and Brown filed legal briefs asking the judge to allow same-sex couples to marry.
Judge Rules Proposition 8 Unconstitutional
Federal judge Vaughn Walker issued a highly anticipated decision in the lawsuit Perry v. Schwarzenegger, declaring Proposition 8 a violation of the federal constitution's promise of equal protection and due process.
In his ruling, the first in a federal trial focused on the denial of marriage rights to same-sex couples, Judge Walker rejected the arguments of Proposition 8's legal proponents that there was a rational basis for the state to discriminate against gay and lesbian couples.
He found that the evidence presented during the 12-day trial in his courtrom showed that "same-sex parents and opposite-sex parents are of equal quality" and that Proposition 8 does not make it more likely that opposite-sex couples will marry and raise children related to both parents.
He also wrote that "Same sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions."
Dismissing the argument of Proposition 8's supporters that same-sex marriages harm heterosexual marriages, Judge Walker held that defenders of the initiative could not identify any factually verifiable way in which allowing gay couples to marry would hurt straight marriages.
Walker said that evidence from the Proposition 8 campaign revealed that the most likely reason for its passage was "a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples."
He added that "Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians."
Opponents of same-sex marriage are appealing the decision to the Ninth Circuit Court of Appeals, and legal experts anticipate that the case will ultimately reach the United States Supreme Court.
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