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.