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Prop. 8: If governor and attorney general don't defend gay-marriage law, who can?

Prop8-hearing2

In the second half-hour of the Prop. 8 hearing, judges grilled anti-Prop.8 attorney David Boies on the question of who has standing to appeal Judge Vaughn Walker's lower-court decision tossing the law.

Both Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown (now the governor-elect) declined to appeal Walker's decision.

That prompted the judges to question who did have the right to appeal, an important point, they noted, given that a majority of California's electorate voted in 2008 for Prop. 8, which defined marriage as between a man and a woman.

"My problem is, in fact, the governor's and the attorney general's actions have essentially nullified the considerable efforts that were made on behalf of the iniatitive," said Judge N. Randy Smith, the most conservative judge on the panel.

He and other judges noted that neither Schwarzenegger nor Brown had the power to veto the proposition when voters approved it. But by declining to appeal the legal judgement, were they not effectively vetoing it?

Judge Stephen Reinhardt raised the possibility of asking the California Supreme Court to answer this question of state law. (A federal court of appeals can do this by "certifying" the question to the California Supreme Court.)

UC Irvine Law School Dean Erwin Chemerinsky, who is analyzing Monday's court arguments for The Times,  noted: "This raises a possible outcome of today's argument that no one has yet raised. It would mean that the case would go to the California Supreme Court to answer the question of California law on who has standing to defend an initiative, and then come back to the 9th Circuit."

FULL COVERAGE:

If ruling overturning Prop. 8 allowed to stand, court must decide who would be bound by it

Federal appeals panel might return some issues to state Supreme Court

Imperial County's role in defending gay-marriage ban questioned

Photo: Judge Stephen Reinhardt. CSPAN

 
Comments () | Archives (16)

The fact is that both the Gov. and Gov. elect both violated their oaths of office by NOT defending Prop 8.

It doen't matter whether they think the prop was immoral, illegal, unconstitutional or all of the previous, they are (supposedly anyway)sworn to uphold the will of the people of the State, NOT impose their personnal morals on the populace.

Just out of curiousity, where does it say in either the State or US constitutions that marriage is a "right" for anyone? Gay, straight or any other way you can think of it?

The people trying to frame this debate as man's law vs. Gods law are on the right track. The only problem with Gays marrying is that is violates God's law. But this is America and here we don't follow God's law. Isn't this what seperates our country from countries like Saudi Arabia and Iran that follow a supreme religious leader. Its time for this country to decide if we are a secular nation or just a bunch of hypocrites who only believe in a separation of all other people's church and our state. The court needs to follow the established law and strike down Prop 8. Otherwise, we open the door to increases religious influence of our laws. What happens when Islam becomes the majority in one city, or one county, or even one state. Will we have set precedent allowing sharia law as long as it is approved by a slim majority of the electorate. Separation of Church and state is a bedrock principle of what it means to be American and the court needs to stand up for this principle.

the people have spoken. there was a majority rule. if this is the case, in EVERY election, whether it be president or taxes... there should always be a place for someone to appeal it. Remember OF the people, BY the people FOR the people. The PEOPLE, in MAJORITY have spoken!

@ Lilo Ainuu - I seriously implore you to go back and retake 8th Grade Civics class because you apparently have no idea how our government works. The United States has never, and will never, be governed by majority rule. It's a republic, not a democracy. It amazes me how many people don't understand that simple point.

Alan,

Marriage is a fundamental right protected by the federal Constitution as laid out by the Supreme Court in Loving v. Virginia.

At one time the majority of people believed in segregation and slavery too.

When do I get to vote on your marriage?

Lilo Ainuu needs to go back to high school and take a civics course. The majority rules unless you're violating the rights of the minority, which is what the 9th Circuit will decide. NOT the people. Too many people in America don't understand our form of government and it is a sad thing.

On one hand I understand the Gay persons point of view. However on the other hand they should just separate the term "Marriage" and "partner" isn't this all about a word? Ok so every child deserves a mother and a father not only one of the pair. After all if a family was naturally possible from two women or two men we would not be having this discussion. In nature you can't pro-create without both a man and woman. OK so gays want the same rights, OK then make a separate name for it. You know a FOSTER parent is NOT a blood parent but the same goes for a child not from both parents. In the end good parents matter more then if straight or gay. Is this about people wanting to be parents or a bond they call "marriage"? A bond is a bond and should not matter by what it is called. So this brings us to the term "marriage" is that term derived from religion? Then if it is then one must abide by that. If that term is not from religion then what does it matter? I'm neither for or against, this is just something to consider. I guess my point or question is the same, is this Man's law or God's law? The fact that people go to church and have a minister means this is a religious issue. Does the Pope allow gay marriage? Does the bible allow it? I see how this battle is uphill. Now would you want to be the child of a gay marriage? Is it fair for a child to not be allowed the NORM or a real father and mother? Our constitution is always used against us, America is going downhill fast. Our courts are corrupt, our police are allowed to kill and when they do they don't get the same jail time.
We're lulled into going to war and spending trillions of dollars to KILL people and here we're so concerned about men marrying men and women marrying women. The world has gone insane.

Alan Thompson: You made the point and then missed it entirely. "It doesn't matter whether they think the prop was immoral, illegal, unconstitutional or all of the previous, they are (supposedly anyway) sworn to uphold the will of the people of the State, NOT impose their personal[sic] morals on the populace." EXACTLY. That is exactly what the people who voted for Prop 8 did. They imposed their moral and religious beliefs on the populace. It's interesting that you think it's ok when the "people" did it. This is purpotedly why we have a separation between church and state; so that one person's religious views are shoved down the throat of someone else. Do you know what that's called: A THEOCRACY. Check out Iran and Afghanistan if you want to see what it's all about. I don't recommend it.

As one of the justices said, can the People "speak" to remove integration in schools? To remove the right of intra racial couples to marry, of women to vote? Perhaps the "People" would vote to restore slavery?

The reason for the judicial branch of government is to protect the People from themselves so to speak. Otherwise slim majorities - financed by out of state relagious zealots - are able to dictate their belief systems upon the rest.

So far as that goes the Utah based Mormon Church pumped millions of dollars and thousands of volunteer hours into Prop 8. If that is't an oxymoron I don't know what is.

One more point - if marriage is for the sole reason of procreation, as the religious zealots state. Then should not opposite sex couples who are unable to conceive or otherwise choose not to have children - shouldn't they also be denied the right to marry? Equal rights for all means just that.

So let me get this straight, if a woman cannot have babies because she physically cannot produce then should she not be able to marry? SInce people seem to think that marriage is about procreation. When I want to think about marrying someone I don't think "Oh I want to marry this man because I need to create babies!" NO, I think " I want to marry this man because I am IN LOVE with this person!" HELLLOOO that's the reason why you get married because YOU ARE IN LOVE!

@ Alan Thompson:
Marriage is defined as a constitutional right under the 14th Amendment's Due Process clause: right to "life, liberty...." The Supreme Court has said that marriage is a right guaranteed by that clause. Now obviously they were referring to heterosexual marriage only since homosexual marriage was not an issue at the time.
If you look at this from a legal/constitutional standpoint there is precedent and arguments for ruling for or against Prop 8....

"Render unto Caesar that which is Caesar's." If there is no good "secular" reason why gays can't be allowed to marry then it has to be dropped and it is the court's responsibility to rule per the logic of secular law as defined by the Constitution. You don't have believe it is right, but you must accept it's legality if you're only argument is that you think that it is wrong for religious or moral reasons.

I defend gay marriage and I curse those who defend proposition 8 in the name of Jesus Christ and I will be a winner and no one will stand against me. I close in the name of Jesus Christ, amen.


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