Instead, Jerry Brown, perhaps out of conviction or perhaps out of desire to seek the Governorship, chose not to defend Proposition 8. Instead the defense was left to a group of activists who were involved in the election campaign.
The question now before the 9th Circuit Court is of substantial importance – does this group have the standing to defend proposition 8?
In fact, the plaintiffs in the case are hoping for this outcome. As we reported on Tuesday, the 9th Circuit panel, which includes a conservative, a moderate, and a liberal, indicated that the court has serious questions about the standing of Proposition 8 sponsors to appeal Judge Walker’s ruling regarding the constitutionality of the ban.
ProtectMarriage has now been ordered to address why it believes it has legal authority to appeal. Under ordinary conditions, only those directly impacted by a judge’s order can appeal. The Governor and Attorney General have refused to appeal and instead called for same-sex marriages to resume as soon as possible.
If the 9th Circuit Court finds that proponents lack standing to appeal, the case may not reach the appellate courts at all. That could mean a win for gay marriage in California, albeit it would not be the type of win that same-sex marriage supporters are seeking. It would lack the national clout of a 5-4 decision, in which Justice Anthony Kennedy casts the deciding opinion in favor of legalized same sex marriages.
However, as UC Davis Law Professor Vikram Amar tells Time Magazine, if proponents of Proposition 8 lack the standing to defend the measure in the appellate court, they may not have had standing to do so in Judge Walker’s court. He tells Time Magazine, “If the proponents don’t have standing to appeal, then it’s entirely plausible that the courts will rule that they did not properly have standing to go to trial.”
“This is an issue [Judge Walker] glossed over when he allowed them to intervene in the trial.”
Time Reports, “Amar says that if the Ninth Circuit agrees with Walker that the proponents don’t have standing to appeal, the judges may well decide they shouldn’t have been allowed to intervene in the case at all. If they do, he says, they could decide to vacate the trial entirely, sending it back to Walker to start over. The governor and attorney general would be unlikely to intervene — but on the other hand, come November, voters will choose new candidates for both of those offices.”
Peter Sheer disagrees with Professor Amar here. As he says, “states should not have the power, through their absence, to veto federal constitutional challenges to state laws.” Nevertheless, he agrees that these are largely unchartered legal waters. If it turns out that none of the parties before Judge Walker was a constitutionally-adequate defendant, the judge’s entire decision may fall—which is to say, gay marriages in California would once again be illegal,” Mr. Sheer writes.
Mr. Sheer continues, “Although Jerry Brown is no doubt sincere in his view that Prop 8 violates the Constitution, his role as Attorney General is not to advocate his own personal views or to take positions that please his political base. Rather, his job is to defend California in all cases except where the state’s actions are patently indefensible. (And while it may be terrible public policy, Prop 8 is unquestionably defensible under existing constitutional doctrine). This aspect of the attorney general job description is not spelled out in any law. Nonetheless, it is necessary for the functioning of the judicial system.”
Where does that leave us? It leaves us with a huge amount of uncertainty. I do not believe it will come to that, because I think that the court will probably allow the group standing, and even if they do not, I think Mr. Sheer’s point will probably carry a good deal of weight. The state cannot be allowed to prevent constitutional scrutiny, by either intentionally or unintentionally failing to challenge a legal challenge.
Nevertheless, I am increasingly shifting my thinking on this and am now leaning toward agreeing with those who questioned the appropriateness of Attorney General Jerry Brown’s failure to defend Proposition 8 in a legal challenge. Future AG’s should think twice before following suit.
—David M. Greenwald reporting
It is difficult to imagine that the 9th Court will rule that the plaintiffs do not have standing but sanction Judge Walker’s ruling that they had standing in his court. Judge Walker’s judicial decisions, while “conservative” and routinely favoring corporate power and the wealthy, has
been described as “iconoclastic” and at the very margins of legitimate judicial analysis when it comes to homosexual issues. The 9th circuit may very well find that the combination of Judge Walker as the sole decision-maker here along with the refusal of AG Jerry Brown to fulfill his sworn duty to defend the CA constitution creates a public sense of “illegitmacy” in CA that is unacceptable and invalidate the entire proceeding.
“….but on the other hand, come November, voters will choose new candidates for both of those offices.”
As much as I would like to see a Democrat as CA governor , Jerry Brown has demonstrated a level of arrogance and opportunism that will give me significant pause when I vote in November. Whitman is campaigning for civil unions(with ,I am assuming, the same full and equal substantive rights as marriage) and will benefit from the growing public sense of illegitimacy that will follow increasing media attention.
If the 9th circuit rules that this activist group has standing in Federal Court, THIS will probably immediately be appealed by the AG’s of the states that would be affected adversely by the 9th Court’s decision. In addition to the current Supreme Court having a history of being,in general, “dismissive” of the 9th’s decisions, the law on standing in Federal Court is clear and the ruling against the standing of Protectmarriage in Federal Court(both Judge Walker’s court and the 9th District) would most likely,IMO, be near unanimous.
Jerry Brown chose to ignore state law (the will of the voters), and follow his own personal views; Judge Walker chose to ignore settled legal precedent, and granted standing to those who probably should’t have been granted legal standing…
Ignoring the law and legal precedent is a slippery slope, which I have said many times before…
Everyone should operate within the framework of the law and our legal system, else somewhere down the road they may find the law is not there to protect them when they most need it – because someone has arbitrarily decided a particular law does not comport with their particular world view…
I can see the Whitman TV ads already: Jerry Brown believes that as our Attorney General, he could ignore his sworn oath to defend our California constitution. What other strange ideas does the former Governor Moonbeam have in store for us??
“Jerry Brown chose to ignore state law (the will of the voters), and follow his own personal views”
The simple explanation may be that Jerry Brown spent his entire adult life either seeking or holding political positions of supreme executive
power and this is the mindset in which he operates,i.e. making executive decisions, not protecting our Ca constitution and administering CA law.
THE PROBLEM IS PROCESS:The popular historians Will and Ariel Durant described the importance of process (citation below)* in their summary volume titled, “The Lessons of History”. This summary text was written the end of their extensive writing career. Basically, they are indicating that if the process is flawed, so shall the product be.
___________________
* Therefore, the conservative who resists change is as valuable as the radical who proposes it-perhaps as much more valuable as roots are more vital than grafts. It is good that new ideas should be heard, for the sake of the few that can be used; but it is also good that new ideas should be compelled to go through the mill of objection and opposition. This is the trial heat that innovations must survive before being allowed to enter the human race. It is good that the old should resist the young, and that the young should prod the old. Out of this tension, as out of the strife of the sexes and the classes, comes a creative tensile strength, a stimulated development, a secret and basic unity and movement of the whole (Durant, W. and A. Durant. 1968. The Lessons of History, Simon and Schuster, New York, N.Y. 117p. (citation (pp.35-36)
Steve Hayes: “…but it is also good that new ideas should be compelled to go through the mill of objection and opposition…”
In other words follow the law and legal precedent…
“In other words follow the law and legal precedent…”
I don’t think that this is what Steve Hayes had in mind but rather the PROCESS whereby current law and legal precedent as well as the consequences of proposed changes can be fully and fairly argued.
I should make clear before saying this that I fully support gay marriage and have always believed that Prop. 8 was wholly unconstitutional, not to mention completely immoral. Using popular vote to establish a constitutional amendment which abridges the rights of a minority is a perversion of everything this country is supposed to stand for. Its far too common these days that people restrict the rights of others in the name of liberty and freedom.
That said, I definitely took issue with Brown’s decision. It’s critical that the Attorney General take serious the legal defense in the name of a law passed by the majority of Californians. To not do so, while perhaps well intentioned, is foolish and jeopardizes the credibility of the legal process as it moves forward.
I’m gonna say what no one else will… the prop 8 opponents, in their attempt to get what they want, completely undermine the democratic process…
the people who support gay marriage are still losing because they will not go on the attack… the prop 8 opponents choose the battleground (discrimination) and then dare the 8 supporters to fight on it.
the basic rule of war (political and military) is NEVER LET YOUR OPPONENT DECIDE WHAT TERMS THE BATTLE WILL HAPPEN ON… instead of discussing prop 8 as discrimination versus non-discrimination, discuss how the 8 opponents are against the democratic process, and are anti-family unit. make them defend themselves. Make them defend how they can repeatedly throw out votes of californians and leave their cause to unelected judges and then in the next breath calim to be for freedom, democracy, and civil rights. make them defend how they repeatedly attack family and family traditions…. they want homosexuality not to be tolerated, but mainstreamed into our culture…
fight fire with napalm
“Everyone should operate within the framework of the law and our legal system, else somewhere down the road they may find the law is not there to protect them when they most need it….”
Dred Scott operated within the framework of the law and our legal system.
I’m gonna say what no one else will… the prop 8 opponents, in their attempt to get what they want, completely undermine the democratic process…
Wow. I guess that’s what the Warren Court did with the civil rights decisions? undermined states’ rights to determine their own laws regarding segregation? It’s tough having that third branch of government, huh?
I agree wdf, you can’t democratically vote to deny other people their rights. That’s why we have a constitution and checks and balances. Kane had a legitimate democratic process argument to make here, but he didn’t play that card.
Don Shor: “erm: “Everyone should operate within the framework of the law and our legal system, else somewhere down the road they may find the law is not there to protect them when they most need it….”
Dred Scott operated within the framework of the law and our legal system.”
To clarify: Everyone should operate within the framework of CURRENT law and our CURRENT legal system, else somewhere down the road they may find the law not there to protect them when they most need it…
If you can pick and choose which laws you will obey, and which you will not, then you don’t have any system at all… tomorrow some group may decide to ignore law they don’t particularly like that you think is essential…
Let us hope Peter Scheer, Executive Director of the First Amendment Coalition, is correct when he states: “I think states should not have the power, through their absence, to veto federal constitutional challenges to state laws), [but] these are, at best, unchartered legal waters.” From what he and others comment the question of legal standing to participate in the appeal of Federal Judge Walker’s decision will be contentious. So we will wait and see who is allowed by the Ninth Circuit Court of Appeals to participate.
Much has been commented on this blog by people I respect but disagree with concerning the decision by Attorney General Jerry Brown not to defend the amended portion to the California Constitution known as Proposition 8. They claim that AG Brown has violated his oath of office by not defending this amendment. They are correct that AG Brown did not defend the constitutional amendment, but they omit the fact that according to his Oath of Office AG Brown above all else has a higher duty, that being to “support and defend the Constitution of the United States.”
Jerry Brown and all other office holders in the State of California take an Oath of Office to uphold and adhere to the United States Constitution first and foremost before upholding the California Constitution.
The Oath of Office AG Brown took is found in the California Constitution:
[quote]Section 3 of article XX of the California Constitution provides:
“Members of the Legislature, and all public officers and employees,
executive, legislative, and judicial, except such inferior officers and employees as may be by law exempted, shall, before they enter upon the duties of their respective offices, take and subscribe the following oath or affirmation:
“‘I,_________________________, do solemnly swear (or affirm) that
I will support and defend the Constitution of the United States and the
Constitution of the State of California against all enemies, foreign and
domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter.”[/quote]
It is the duty of the oath taker to first and foremost “support and defend the Constitution of the United States and…bear true faith and allegiance to the Constitution of the United States…” It is secondarily the duty of the oath taker to support and defend the Constitution of the State of California. Jerry Brown is upholding his oath of office by upholding the United States Constitution first and the State of California Constitution second.
The US Constitution is the higher authority and the oath taker in this case the attorney general is doing his duty by not defending that which he knowingly believes per legal analysis and argument is unconstitutional as per the US Constitution. The whole purpose of the lawsuit filed in Federal Court against “Proposition 8” is to test whether the California Constitution as amended by a vote of the people that takes rights away from a segment of our population is in violation of the US Constitution. Again, the Federal Courts are being asked to determine whether the California Constitutional amendment violates the US Constitution and they will decide who is correct.
AG Brown believes he is correct pending a final decision by the Federal Courts. Some have called his decision arrogant not to defend this amendment to the California Constitution which he believes to be in volation of the United States Constitution. But I believe he has a duty to both offer a legal opinion and adhere to his Oath of Office to firstly support and defend the United States Constitution. If he is correct, the amendment is unconstitutional and accordingly null and void.
Constitutional scholars and US Supreme Court litigators led by David Boies and Ted Olson believe, as does Jerry Brown, that this voter imposed constitutional amendment which prevents equal protection under the law for all of our citizens violates the US Constitution. I will put my faith in their judgment.
“but they omit the fact that according to his Oath of Office AG Brown above all else has a higher duty, that being to “support and defend the Constitution of the United States.”
The number of words used is not the measure of the “weight” of an argument.Peter Sheer’s analysis is patently correct to all except those who are blinded by their zeal.
“all except those who are blinded by their zeal”
While I support the right for gays to marry, I would not consider myself a zealot on this issue. Certainly if I were to rank order the issues that I consider most important, it would take a while to get to marriage equality, I’m not even sure it would rank as my top issue on gay rights.
That said, I think there is a good deal more latitude for the AG to act than you are ascribing and it gets down to this question – is the AG compelled to defend a measure that he believes is unconstitutional and immoral. So let’s remove this issue from the venue for now. Some states have anti-miscegenation laws on the books others have archaic sodomy laws, would an AG be compelled to defend those laws on the books from legal challenge? I think most people would argue no. The question then becomes where is the line clear? You are going to argue for case law here? Then I’m going to suggest that would also be pretty fuzzy in areas as well.
I’m not saying your necessarily wrong, only that the lines here are not nearly as clear cut as either you or Peter Sheer, whose work I respect would claim