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Cal. Sup. Ct. Won't Force Gov, AG to Defend Prop 8

By Tanya Roth, Esq. on September 13, 2010 | Last updated on March 21, 2019

This week the California Supreme Court set up another sign-post on the legal road for Perry v. Schwarzenegger, the suit over California's ban on same sex marriage. As discussed in a prior post, the court was petitioned to force the Governor, along with Attorney General Jerry Brown, to defend the law to the court of appeals. The California Supreme Court has decided the governor and attorney general have no legal requirement that would force them to defend Prop 8.

Conservative groups have argued state authorities have a legal obligation to defend the law, reports the Christian Science Monitor. The Los Angeles Times even went so far as to editorialize that "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." However, it may not be so much a case of personal distaste, as one of spending scarce state resources on a law that has been declared unconstitutional by a federal court.

"Both the Governor and the Attorney General were convinced by the merits of Judge Walker's comprehensive factual findings and legal conclusions," Joan Hollinger, professor of law at the UC Berkeley School of Law, told the Monitor. "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.

The next step on the road will be to determine who then, will argue the appeal to the 9th Circuit. Erwin Chemerinsky, Dean of the UC Irvine School of Law, says that standing to appeal is necessary. "Standing requires a direct, personal injury. I think it is doubtful that the defenders of Proposition 8 will meet that requirement."

According to the Monitor, Dean Chemerinsky thinks the result will be that the decision by District Court Judge Vaughn Walker declaring Prop 8 unconstitutional will then stand. Other experts think the 9th Circuit may well apply the lack of standing to that trial as well, and vacate (erase) the opinion. Then, it is possible that California will have nullified Prop 8, but have no federal opinion that could be looked to as an example by other federal courts. This could result in a relatively quiet final resting place on this long, bumpy legal road.

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