On Thursday a state appellate court refused to order the state of California, represented by Governor Arnold Schwarzenegger and Attorney General Jerry Brown, to appeal a federal judge’s ruling that overturned the controversial Proposition 8.
The Third District Court of Appeals in Sacramento dismissed the suit that sought to compel the state to defend the initiative. They did not issue a comment on the suit filed by conservative Pacific Justice Institute.
The backers of the effort have vowed to file an appeal to the State Supreme Court, as they hope to get a reversal by September 11, which would be the deadline for the state to get involved in the appeal of Judge Vaughn Walker’s ruling.
“When the people peacefully enact a constitutional provision and the attorney general refuses to give them meaningful review in the federal judiciary, then you have a veto by the executive branch,” said the institute’s lawyer, Kevin Snider, in a statement on Thursday. “That is a constitutional crisis, usurping the power of the people.”
“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,” said Pacific Legal Institute Brad Dacus to the Associated Press.
The institute is arguing that as the state’s chief law enforcement officer, Attorney General Brown lacks the discretion to defend only those laws with which he personally agrees with. Moreover, since the California Constitution grants the governor final authority when there is a disagreement between the Governor and Attorney General on legal matters, the Governor must be compelled to file an appeal to preserve Proposition 8.
Theodore Boutrous Jr., a member of the legal team that represented the two couples, told the Associated Press “it is unlikely the state court would order the governor and attorney general to take action because California, like the federal government, requires its executive and judicial branches to operate independently.”
“It’s certainly a novel idea,” Mr. Boutrous said of the Pacific Justice Institute petition. “It seems like it would raise serious separation of powers issues, among other things. We will be interested to see how it plays out.”
Legal experts cited by various sources seem to believe that the Governor and the AG have complete discretion on which cases to appeal, that they are not compelled by law to pursue every single appeal of every case.
For example, Loyola Law Professor Rick Hasen told the Associated Press that the arguments of the institute were “very thin” and the petition is a long shot at best.
“We expect the attorney general to exercise discretion and not to defend a law that the attorney believes is unconstitutional,” Professor Hasen said. “What this is really about, and becomes clear from the petition, is the desire to get the AG to file a notice of appeal, which will solve any potential standing problem in the Ninth Circuit case.”
The issue is the fear of the defenders of Proposition 8, that they may lack standing to appeal the case. The state of California has standing and that puts Gov. Schwarzenegger and AG Jerry Brown in focus. Both have opposed Proposition 8 and AG Brown took the controversial step of refusing to defend it in court.
Defenders of Proposition 8 have argued that as Attorney General, Jerry Brown is compelled to defend the law whether he agrees with it or not. Legal scholars, however, disagree on that point, and many argue that the Federal Constitution trumps the California Constitution. Therefore, if Mr. Brown believes that he would be in violation of the federal equal protection clause, then he would be compelled to not defend it.
As we reported a few weeks ago, UC Irvine Law School Dean Erwin Chemerinsky, in an op-ed on August 15 in the LA Times, wrote, “conservative justices on the Supreme Court have ruled to limit who has standing to bring a claim in federal court. In cases involving civil rights, environmental protection and the separation of church and state, the court has ordered that cases be dismissed because the party pursuing the case had no legal standing to do so.”
Professor Chemerinsky argues that opponents of same-sex marriage now face the problem that, because they are in no way enjoined or covered by the injunction, they cannot be the proper party of it. He writes, “The Supreme Court has explicitly held that standing to appeal is required and that being an intervenor is insufficient to meet this requirement. In one case, the state of Illinois refused to appeal a federal judge’s ruling striking down a law regulating abortion, and a doctor who had intervened tried to appeal to defend the law. The Supreme Court held that the doctor lacked standing and ordered the appeal dismissed.”
He continues, “In another case, voters who supported an Arizona initiative declaring English to be the official language of the state tried to appeal to defend the law. The Supreme Court unanimously ordered the appeal dismissed and expressed “grave doubt” as to whether supporters of an initiative have standing to appeal to defend it.”
Dean Chemerinsky argues that if the 9th Circuit and the Supreme Court simply follow the “well-established law, they will need to dismiss the appeal on grounds that those who filed it have no standing. The outcome, then, will be that marriage-equality will exist in California, at least unless and until in some other case, some day, the Supreme Court comes to a different conclusion.”
Increasingly, some conservatives seem to favor losing California in order to prevent the potential for the case to reach the US Supreme Court and for a 5-4 court to rule that banning same-sex marriage is a violation under the Equal Protection Clause of the US. They fear that Justice Anthony Kennedy, who would be the swing vote, would be inclined to support such a ruling.
I still believe that establishing same-sex marriage is simply a matter of time and of generational demographics. Younger people have grown up with openly gay family members, friends, classmates, and colleagues and simply do not have the level of fear that older generations have for gay people. The question in my mind really is: How soon will it occur?
—David M. Greenwald reporting
Theodore Boutrous Jr., a member of the legal team that represented the two couples, told the Associated Press “it is unlikely the state court would order the governor and attorney general to take action because California, like the federal government, requires its executive and judicial branches to operate independently.”
What an outrageous argument! That’s what separation of powers is all about. It is the role of the judicial branch to oversee the legality and constitutionality of the government’s actions(in this case, the governor and AG). Ordering the release of the Nixon tapes is just one obvious example.
“They are not compelled by law to pursue every single appeal of every case.”
This is certainly the case although, one would assume, that the AG has an absolute duty to the citizens of CA to defend their state constitution throughout the appeal process, regardless of his personal feelings.
In any event, this does not address the refusal of AG Brown to appear in Judge Vaughn’s court to defend the CA constitution when it was challenged in the first instance. This is a clear failure to fulfill his sworn duty as our CA AG.
“The question really in my mind is how soon will that occur.”
What I take away from speaking with most non-gay young people is that they just do give any special weight to the term “marriage”. Marriage, domestic partnerships, civil unions, it’s all the same to them, in terms of societal “value”, with equal substantive rights given to all. Still, there is a majority, perhaps less but still a major political force in the future, that do care deeply about redefining the meaning of marriage to include same-sex unions. With the social “stigma”and social non-inclusivenes of civil unions/domestic partnerships as compared to marriage removed, politically, the future may very well offer no real argument to redefining the definition of marriage.
correction: …most young people do NOT give any special weight to the term “marriage”.
davisite2: “What I take away from speaking with most non-gay young people is that they just do give any special weight to the term “marriage”. Marriage, domestic partnerships, civil unions, it’s all the same to them, in terms of societal “value”, with equal substantive rights given to all. Still, there is a majority, perhaps less but still a major political force in the future, that do care deeply about redefining the meaning of marriage to include same-sex unions.”
And this is precisely why some of us are concerned for the traditional institution of marriage – that young people see it as no big deal.
If marriage is no big deal, then what difference does it make if you allow same-sex couples to marry. The very fact that people are having to fight for the right to marry imparts the signal to young people that it is a big deal and therefore they will respect the institution more. If the label doesn’t matter, then there is no reason to deprive gay people of that right, but because people are fighting to do that, it suggests that the label does matter and therefore it is a matter of equal rights.
I’ll go out on a limb here and invite an attack of “psych-babble” with the following:
This “fight” may very well be primarily driven(and funded) by an aging subset of politically active gays who have grown up in,and internalized, a social environment of rejection by society (and family). With society’s increasing tolerance/acceptance of gay-unions and life-style, the gays of the future will not carry the “scars” of those leading this current “fight” and may very well care little what their government-sanctioned civil unions/domestic partnerships are called as long as they are given equal substantive rights.
I don’t think you have any empirical evidence to back that statement up davisite. I’ve been to a lot of rallies, almost all of them predominated by young people – gay and straight. Go to a Gavin Newsom event, young people who admire him because of his same sex marriage stance. I see no evidence that this is being driven by aged politically active gays.
“Go to a Gavin Newsom event, young people who admire him because of his same sex marriage stance…”
Although I have never attended a Gavin Newsome rally,given his penchant for self-inflating egotistical demagoguery, I would guess that it would be difficult to distinguish from a rock concert.
I don’t think you have any empirical evidence to back that statement up davisite. I’ve been to a lot of rallies, almost all of them predominated by young people – gay and straight.
I agree. that has been my observation, too.
The psychobabble response you invited: Your observations on this topic are delusional, and your commentary is incredibly whacko!