California's next attorney general could delay ruling on Proposition 8

A law professor who supports marriage rights for gays and lesbians said Thursday that the race for California attorney general “could end up mattering so much to the future of Proposition 8,” the 2008 voter measure that reinstated a ban on same-sex marriage.

Los Angeles Dist. Atty. Steve Cooley, the Republican candidate for attorney general, has promised to defend Proposition 8. His opponent, San Francisco Dist. Atty. Kamala Harris, a Democrat, has said she would not challenge a federal court ruling that found the measure unconstitutional.

UC Irvine Law School Dean Erwin Chemerinsky, speaking at a news conference sponsored by Equality California, a gay rights group, said a decision by the next attorney general to defend the anti-gay marriage measure would “significantly” delay a federal appeals' court decision on the proposition's legality and probably influence the ultimate ruling.

U.S. District Court Judge Vaughn R. Walker ruled in August that Proposition 8 violated the federal Constitution. Proponents of the measure have appealed, but several legal scholars, including Chemerinsky, believe the sponsors lack legal authority to challenge the decision.

Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown clearly have authority to appeal, but have decided against it. The appeals court could permit the lower court ruling against Proposition 8 to stand on the grounds that no one with legal authority has challenged it.

“I think it's possible, even likely, that the 9th Circuit is going to dismiss this case for lack of standing,” if the state continues to refuse to defend the measure, Chemerinsky said. "The attorney general's race can matter greatly when it comes to restoring marriage equality in California."

Although a legal deadline for appealing has passed, Chemerinsky said he could imagine the court “might be willing” to permit a new attorney general's intervention. At the least, the attorney general could file a friend-of-the-court brief in favor of Proposition 8, he said.

Chemerinsky said the election of Meg Whitman, the Republican candidate for governor, also could help Proposition 8's chances on appeal. Whitman, who as governor could intervene in the case, has said the state should be defending Proposition 8. The 9th Circuit is now reviewing written arguments in the case and will hold a hearing in December.

-- Maura Dolan

Comments

[indianrider]

Let the majority rule. Enforce Proposition 8.

[The Truth Fairy]

Erwin Chemerinsky should be on the US Supreme Court!

[DrClue]

An AG expressing campaign promises to defend prop 8 would indeed seem to have but the weight of political posturing as they would at the time of
being sworn in have no standing to do so as the clock would have run out.

Of course an AG making such a promise is but making a pledge to violate their oath of office by attempting to subvert rather than uphold and defend The Constitution of The United States of America.

Mob rule (which is what prop 8 was) holds no weight if same cannot pass constitutional muster.

"Our democracy is set up so that when two wolves and one sheep vote on what's for lunch, it's not going to be the sheep."

If this were not the case , blacks would still be "property" and a womens place would be in the home. In short our country would be about as backward as if it were run by the Taliban

[Ray]

Eh? The appeal deadline is jurisdictional, and, can only be extended if a request is made -before- the deadline. The Ninth Circuit does not have the authority to allow an out-of-time appeal.

[Bill]

How very sad that American citizens' civil rights are played with in this manner.

Isn't that illegal, to boot?

Because I was taught in school that civil rights were dependent on no political process or outcome.

[PlayfulWalrus]

Vote for Meg and Steve Cooley!

Let's look at reality:

1) Men and women are different. Even most of the people who try to deny this demonstrate that they understand this to be true. After all, if men and women were not different, all, or at least three, of the terms in "LGBT" would have no meaning.

2) The paring of a man and a woman is different than the pairing of two men or two women. This automatically follows if #1 is true. But we know that the pairing of a man and a woman is the only kind of pairing that is able to naturally produce new citizens (who, unlike the adults, do not consent to the relationship), even if not all do. This alone is enough to give the state more interest in the pairing of a man and a woman.

3) Men and women are different in personal relationships. Again, even the people who try to deny this demonstrate that they understand this to be true. If that difference matters enough to someone in picking a lover, how can it not matter when it comes to the parent-child relationship?

4) State licensing of bride+groom pairings provides children with a role model, guardian, and bonding partner from each of the two sexes that comprise all of society, legally bound to each other as well as the children; generally, this is good for children.

5) It is constitutional, moral, common, and necessary to treat different kinds of relationships differently.

6) One need not believe homosexual behavior, relationships, or people to be harmful, sinful, or inferior to accept any or all of #1-5.

We all have an interest is shaping our culture, including our laws.

[Jim S]

By the time the new attorney general is sworn into office, the deadline to appeal will have passed. I'm not sure what Chemerinsky thinks the ninth circuit could do after the deadline, other than an amicus curiae which would probably be meaningless if there is no official appeal.

[tomwins]

PlayfulWalrus said:
Let's look at reality:
1) Men and women are different.
2) The paring of a man and a woman is different than the pairing of two men or two women.
3) Men and women are different in personal relationships.
4) State licensing of bride+groom pairings provides children with a role model, guardian, and bonding partner from each of the two sexes that comprise all of society, legally bound to each other as well as the children; generally, this is good for children.
5) It is constitutional, moral, common, and necessary to treat different kinds of relationships differently.
6) One need not believe homosexual behavior, relationships, or people to be harmful, sinful, or inferior to accept any or all of #1-5.
___________________________________________
The problem with each of your points above is that it they are either irrelevant to or violate the US Constitutional guarantee to equal rights of individuals. Some of your points are similar to those used to justify denying "mixed race" marriages until they were ruled unconstitutional.

[Michael]

Why weren't Civil Rights?, Women's right to vote, or to end slavery put to a popular vote?? When Rosa Parks sat in front of the bus, what would the popular vote have been back then? Just because 52%of YOU Scaredy Cat Bullies on the playground said yes DOSE NOT MAKE IT RIGHT! = = =, thats EQUALITY 101. STOP being a BULLY!! Use your freedom to express your views, just stop expecting others to follow them.

[Kenerell]

When it comes to Civil Rights, the USA DOES NOT put civil rights up to a vote of the majority - otherwise the majority would always vote down the rights for minorities. Civil Rights are legislated. The notion of voting on the righs of others should also be equal. If YOU get to vote on MY civil rights then I should be able to vote on YOUR civil rights. Gay Rights ARE Civil Rights & "Civil Marriage IS a Civil Right", Coretta Scott King.

[Jim]

People may complain about democratic elections when their issue is defeated or their candidate looses - that's expected. In this case a law was passed and then overturned by a judge that doesn't agree as well. Just because the prosecuting attorney does not share that point of view that does not absolve his responsibility from pursuing an appeal. The oath of office is to defend the laws and he doesn't want to do that he should find a new job.

[David (OH)]

Jerry Brown has done a disservice to the voters of CA. The Attorney General is supposed to defend validly passed laws whether he agrees with them or not. It is his duty. Gay marriage proponents know that the ruling will not stand on appeal on the merits, so they use the standing issue to skirt the issues. Who else is supposed to defend citizen initiatives against frivolous lawsuits when the AG won't do what he's supposed to? Its this kind of nonsense that made Californians amend their Constitution a century ago to allow for these types of voter initiatives, when government officials are unresponsive to the will of the people!