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Defending Prop 8: Someone’s Got To Do It

A look at the past week.

— The continuing saga of Proposition 8 took the public stage early this week as we got to actually see televised arguments before the 9th Circuit Court of Appeals. It was exciting to hear the courtroom debate over the meat of the gay marriage issue. But I paid the greatest attention to arguments about a procedural issue called “standing.”

You probably know that California voters, who outlawed gay marriage by passing Prop 8, are being represented by lawyers from a conservative coalition called Protect Marriage. Voters are not being represented by Attorney General Jerry Brown or Governor Arnold Schwarzenegger because neither of them wanted to defend the proposition.

The problem with this, according to plaintiffs’ attorneys, is that Protect Marriage is not named in the lawsuit, it would suffer no direct harm from striking down Prop 8, it has no legal standing in the case and therefore it cannot represent voters.

That may or may not be true. Defense attorneys told the court panel that precedent allows proponents of ballot measures to take up legal challenges “in lieu” of state officials. I’ll only say that if Brown and Schwarzenegger won’t defend Prop 8, somebody’s got to do it.

The refusal of Jerry Brown to represent voters in this case illustrates the problem with electing partisan politicians to act as the state’s top attorney. Brown’s decision’s was clearly troubling to the appellate court judges who heard the case this week. One of them pointed out the attorney general “has a duty to defend all causes to which the state is a party.”

Jerry Brown's successor in the A.G.'s office, incedentally, has also said she won't defend Proposition 8.

One judge said the governor’s refusal to defend Prop 8 was, in essence, a veto. Governors can do that with legislation but they have never been able to veto propositions that are passed by voters. Yet, if the 9th circuit says Protect Marriage has no standing – and they reject Imperial County’s effort to intervene in the case – it’s possible that Prop 8 could be overturned on a legal technicality that acts like a veto.

I can imagine a lot of people would cheer that development. But they shouldn’t, because Brown and Schwarzenegger may be canceling the votes of millions of people on an issue that Californians are very passionate about.

And if you think the only people who voted for Proposition 8 were wealthy Mormons, remember what we learned from post-election polls in 2008. Exit polls showed that 70 percent of black voters supported Prop 8. A poll by the Public Policy Institute (PPI), about a month after the election, showed 61 percent of Latinos said they supported Proposition 8. PPI President Mark Baldassare said income and education levels were the most decisive factors determining who supported Prop 8, with low-income people supporting it and higher-income people voting against it.

In other words, by refusing to represent Prop-8 supporters in court, the governor and the attorney general are disenfranchising blacks, Latinos and the poor.

If Proposition 8 is struck down on the issue of standing, this case is unlikely to become a precedent with national repercussions for other states that have limited marriage to heterosexual couples. USD law professor Miranda McGowan points out the finding that Prop 8 is unconstitutional, under federal law, was made by only one federal district court judge. Vaughn Walker.

But I’m hoping this case will be decided on its merits. The voters of California deserve legal representation, and it’s time for the U.S. Supreme Court to weigh in on the very hot topic of gay marriage.

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