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

October 14, 2010 |  3:21 pm

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