Has California Supreme Court ruling 'wiped out' support for Prop. 8?

Gov. Arnold Schwarzenegger and Attorney General Jerry Brown are not required to defend against a legal challenge to Prop. 8, the law banning same-sex marriage, the state supreme court found. So who will defend it now?

Eric Risberg/AP
Molly McKay of Marriage Equality USA, center, reads the decision in the US District Court proceedings challenging Prop 8 outside of the Phillip Burton Federal Building in San Francisco, Aug. 4.

The California Supreme Court ruled Wednesday that Gov. Arnold Schwarzenegger and Attorney General Jerry Brown have no legal obligation to defend Proposition 8. The 2008 voter-approved measure banning same sex marriage was declared unconstitutional by a federal judge on Aug. 3.

Analysts call Wednesday's ruling a major setback for Prop. 8 supporters.

“There is a decent chance that Prop. 8 will be wiped out and that same sex marriages will be declared legal in California,” says Royal Oakes, partner at the Los Angeles-based law firm Barger and Wolen.

Protect Marriage, a coalition of religious and conservative groups that sponsored and had defended Proposition 8, had been trying to force the state to defend the law, arguing that the governor and attorney general had an obligation to do so. When US District Judge Vaughn Walker overturned Prop. 8, legal analysts raised questions about Protect Marriage's legal standing to file an appeal of the decision. Wednesday's ruling raises serious questions about who will defend Prop. 8 as the Ninth US Circuit Court of Appeals is scheduled to hear oral arguments in December.

The governor and attorney general have come under heavy criticism for refusing to defend the case, each holding that they have no personal disagreement with same-sex marriage.

“California's top public lawyer and its chief executive have an obligation to defend the laws of the state whether they like them or not – and that should include the ban on same-sex marriage,” said an editorial in the Los Angeles Times.

The sentiment is echoed by Chris Gacek, senior fellow at the Family Research Council, a conservative Christian group and lobbying organization.

“This brings up the real possibility of collusive litigation,” he says, “that the attorney general could have this weird kind of veto over statutes passed by the legislature and governor," he says, adding, "just don’t defend them in court and they become null and void.”

But legal scholars said the court has made the right decision.

"Both the Governor and the Attorney General were convinced by the merits of Judge Walker's comprehensive factual findings and legal conclusions," says Joan Hollinger, professor of law at the UC Berkeley School of Law. "And," she adds, "as is their prerogative under our state law, they have decided not to appeal his ruling to the Ninth Circuit Court of Appeal. They are both discharging their obligations under California law and do not want to waste public resources on defending a proposition they and their lawyers believe has been appropriately found to violate the federal Constitution.”

The next question, say Ms. Hollinger and UC Irvine Law School Dean Erwin Chemerinsky, is who will represent the Prop. 8 case in appeal.

“The defense of Proposition 8 in the Ninth Circuit will [now] depend on whether the defenders of Proposition 8 are deemed to have standing to appeal,” says Mr. Chemerinsky. “The Supreme Court has said that standing to appeal is essential. Standing requires a direct, personal injury. I think it is doubtful that the defenders of Proposition 8 will meet that requirement."

Chermerinsky predicts the appeal will be dismissed for lack of legal standing and Walker's ruling will stand.

The Los Angeles Times says rather than let the appeal die for lack of standing,"the state could best fulfill its obligation by hiring an outside attorney to represent it in the appeal,” and San Diego Attorney Dwight Ritter predicts that will happen.

“It is my expectation that the California Supreme Court, and even possibly the Ninth Circuit Court of Appeals, will allow some entity, possibly private, to make the arguments on behalf of Proposition 8 that are necessary for a full and complete hearing as to the law's validity,” says Mr. Ritter, a partner at Ritter & Associates. “My prediction is that some private group will be given the opportunity to argue the law's constitutionality.”

[Editor's note: The original version of the headline misstated the impact of the California Supreme Court's ruling.]

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