Box Turtle Bulletin
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News and commentary about the anti-gay lobbyAugust 23rd, 2010
Former eBay CEO Meg Whitman, who is running for the GOP nomination for California Governor, announced that if she were elected governor, she would defend Prop 8 in Federal Court:
Whitman’s first definitive statements on how she would handle the issue as governor came hours before she spoke at the opening of the three-day state GOP convention in San Diego, where she is facing open hostility from conservatives over her positions on illegal immigration and climate change.
“I think the governor of California and the attorney general today have to defend the Constitution and have to enable the judicial process to go along … and an appeal to go through,” Whitman said. “So if I was governor, I would give that ruling standing to be able to appeal to the circuit court.”
The two named defendants, California governor Arnold Schwarzenegger and Attorney General Jerry Brown, have refused to defend the constitutionality of Prop 8 in Federal District Court. U.S. District Judge Vaughn Walker then invited the Alliance Defense Fund to defend Prop 8 as intervener. Following Judge Walker’s ruling declaring Prop 8 unconstitutional, it is unclear whether ADF has standing to appeal the case to the Ninth Circuit Court. A hearing to decide the issue is scheduled for December 6. The same hearing will also hear arguments on the appeal itself.
Because both the issue of standing and the appeal will be heard before the next governor takes the oath of office in January 3, it is unclear whether the new governor or attorney general could join the case at that later date:
UC Hastings College of the Law professor Rory Little said Whitman’s ability to defend the proposition would hinge on several factors – the biggest of which, of course, is whether she becomes governor.
It would also depend on whether the 9th Circuit decides the standing issue before January 6 and how the court decides.
“There are a lot of ifs,” Little said. “If the 9th Circuit hasn’t decided the matter by December, she could attempt to file a brief to say, ‘Now, the state of California enters the case.’
The state GOP is holding its annual part convention this year at the Manchester Grand Hyatt, which is subject to a boycott by LGBT advocacy groups over owner Doug Manchester’s $125,000 donation to the pro-Prop 8 campaign.
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L. Junius Brutus
August 23rd, 2010
The Republican nominee for Attorney General, Steve Cooley, opposed Proposition 8, but has pledged to defend it. So Whitman and Cooley both have to lose, if we want to be safe. What a shame that a Republican who stuck his neck out in defense of our rights has to lose, if we want to maintain those rights.
Jason D
August 23rd, 2010
from what I understand an “Amicus Brief” is the most any new Governor/AG can do, as the timeframe to appeal Walker’s decision (30 days) will have long past it’s expiration date.
Dale
August 23rd, 2010
Seriously, what the hell is there to defend?
Mark F.
August 23rd, 2010
I don’t agree with Whitman’s position, but I think it is a respectable one.
TonyJazz
August 23rd, 2010
Whitman’s position is respectable?
Yes, if you define respectable to be running for office by pandering to bigots….
Really respectable!?!?! (Mark F, are you posting on the wrong site or something?)
Everett
August 23rd, 2010
I guess I’m the only one who thinks this is good for us. We NEED someone who has STANDING TO APPEAL, otherwise the 9th Circuit and the Supreme Court will NEVER HEAR THIS CASE. What better legal case for gay marriage than CA’s Prop. 8, which TOOK AWAY the ability for same-sex couples to marry. If we were to challenge any other state ban on gay marriage, we would not have the argument that the anti-gay marriage law TOOK AWAY an EXISTING right from a minority. If Whitman or that particular CA county do not have standing, california has gay marriage, but that’s it, unfortunately. Furthermore, if this Prop. 8 case doesn’t go to SCOTUS, who knows if Bois and Olsen will bother joining any other gay marriage case….
Priya Lynn
August 23rd, 2010
Everett if this goes to the U.S. supreme court Walker’s decision will be overturned and equal marriage set back many years. No way is the current makeup of the U.S. supreme court going to uphold the prop 8 decision. It’ll be a good thing if no one has standing to appeal this.
Mark F.
August 23rd, 2010
It is a respectable position for the government to always defend state law because otherwise the State of CA may have a de facto veto power over all voter approved ballot propositions, which is a bit troubling to me. This has nothing to do with the merits of this particular case.
But as I said, I am of the opinion that it is okay for the government to refuse to defend this law. I just see the other side of the argument.
Adam
August 24th, 2010
Mark F. – In principle, that seems to be a sensible position. However, at what point does the executive of a State have “permission” to refuse to defend law passed by voter initiative that is blatantly oppressive or unconstitutional? Would you expect the State to defend an amendment to the CA constitution that made women second-class citizens?
I think there ought to be a degree of discretion trusted to the executive, and that this case, while controversial, falls within that discretion. Walker’s ruling was, by all unbiased and lots of biased accounts, comprehensive and compelling: it should be OK for the State to decide that appealing it is a waste of public resources and is not, in any case, in the best interests of the people.
TampaZeke
August 24th, 2010
I’m totally with Everett. Sorry Priya, I think you are wrong on this one. Not only do I believe that Olson and Boies would win this one at SCOTUS, but I think they would win it by a 6-3 margin.
And please explain how a loss would set us back many years. By the time SCOTUS hears the case it’s very likely that CA will have overturned Prop 8 at the polls so the ruling will be moot since it will only declare Prop 8 constitutional.
It wouldn’t declare gay marriage illegal across the country and it would make gay marriage illegal where it is now legal and it wouldn’t make it any more illegal than it already is in states where it’s already illegal.
I don’t understand this argument that a loss at SCOTUS would set us back years. It would be a temporary psychological loss but, by that time, this train will have already left the station. Just look at how far the country has moved on this question in the last year alone. Imagine how much further we will have moved in another two years. This movement could be influential to SCOTUS but even if it isn’t it will not be stopped by an unfavorable SCOTUS ruling. It would simply put us back to going state by state the way we are now.
If your concern is that we need to wait until we get a more favorable SCOTUS you’re will to wait a LONG time. Probably longer than it would take for us to win marriage piecemeal, state by state. The the political winds are blowing we could end up with a Republican President in a couple of years and would could VERY likely end up with a Republican Senate then, OR SOONER. So the likelihood of a more progressive SCOTUS in the next 20 years is probably more remote than the likelihood of winning this thing on the ground.
Either way, I don’t think we have anything to lose and EVERYTHING to gain.
TampaZeke
August 24th, 2010
I meant to say that it “WOULDN’T make gay marriage illegal where it is now legal.”
Jason D
August 24th, 2010
“It is a respectable position for the government to always defend state law because otherwise the State of CA may have a de facto veto power over all voter approved ballot propositions, which is a bit troubling to me. This has nothing to do with the merits of this particular case.”
Mark, you’re wrong, plain and simple.
Why?
You would have a point about it being a “de facto veto” if ALL initiatives had to then be argued in court. Then yes, the governor and AG could de facto veto anything they didn’t like, but that’s not the case here, is it?
Had the plantiffs not sued or had the judge thrown the case out, Prop 8 would be law.
I find it completely ridiculous that you expect an elected official charged with defending the state AND FEDERAL CONSTITUTION to NOT use their judgement when decided which cases to spend taxpayer funds on and which ones not to bother with.
Elected officials are not sockpuppets. If we wanted that system of government, we wouldn’t need representatives, we would simply use complex polling machines that spit out whatever legislation was most popular. We elect people because we expect THEM to use THEIR judgement.
Mortanius
August 24th, 2010
As if California isn’t in enough trouble with massive debt and threats to pay state workers minimum wage, cut primary programs, etc, that this would be the defining thing the new GOP candidate will run on?
We don’t want none uv dem dar homeosexuals having the same rights as god fearing jesus loving rednecks, so what if our state goes belly up and we can’t afford to do anything, at least dem homeosexuals won’t have equal rights.
Priya Lynn
August 24th, 2010
Tampazeke, you can think I’m wrong all you want, but if this goes to the U.S. supreme court you’re in for a big disapointment. A loss there would set us back many years because it would unequivocally state that there is no right to equal marriage and the court would be unwilling to contradict themselves for many years. If this does not get appealed more states will enact equal marriage and public opinion will move more in our direction and at that time the U.S. supreme court is going to feel that not only is it acceptable to rule in our favour, but that they had better do so.
TampaZeke
August 24th, 2010
Sorry Priya, I think you’re being overly pessimistic.
I guess when SCOTUS rules one of us will have to eat crow.
I’m curious. Did you read the ruling by Walker in its entirety?
Timothy Kincaid
August 24th, 2010
One correction. Gov. Schwarzenegger did defend Proposition 8 as governor.
Granted, his “defense” (through his counsel) consisted of thanking the judge for his time and sitting down, but technically he and the AG were defendants. ADF tried to have them placed on the side of proponents but that was denied.
Publius
August 24th, 2010
I imagine if she were elected California Governor in November, given the typical judicial deference to the government, the Circuit Court would probably delay its decision on standing past January 3rd to give Whitman a chance to file as a defendant in the appeal of Perry v. Schwarzenegger.
Jason D
August 24th, 2010
“I imagine if she were elected California Governor in November, given the typical judicial deference to the government, the Circuit Court would probably delay its decision on standing past January 3rd to give Whitman a chance to file as a defendant in the appeal of Perry v. Schwarzenegger.”
I don’t think they would, considering the fast track they’ve put this case on.
Everett
August 24th, 2010
Priya Lynn,
As someone with a legal background, I’m not sure that there isn’t five votes to uphold Walker’s decision given the very specific facts in this case and the current makeup of SCOTUS.
First, the facts of the case involve the majority of Californians TAKING AWAY an EXISTING right (albeit a right for just 5 months) through popular referendum. If you have knowledge of Romer v. Evans, it could be argued that this is a parallel case of a majority taking away a minority’s right for the purpose of expressing moral disapproval. Justice Kennedy voted with the majority on that case, just as he voted with the majority in Lawrence v. Texas. Justice Kennedy might be more sympathetic to the legal argument that Bois and Olsen (and Walker) had asserted because it includes BOTH those aforementioned court opinions.
As for your assertion that a SCOTUS ruling against gay marriage will set us back: it may or it may not. I’m convinced that SCOTUS will one day have to rule on the constitutionality of gay marriage because like it or not some states (i.e. Alabama, Montana, Mississippi, etc.) will likely not adopt gay marriage on its own, esp. since some states would have to first REPEAL state constitutional amendments by popular vote. So, SCOTUS WILL have to consider gay marriage one day.
I figure, with demographics changing, that gay marriage may be the law of the land in 20-35 years. The way I figure, we can have the issue before SCOTUS in the next couple of years with Olsen and Bois arguing (they’re still in the prime of their legal careers) and either win or lose. If we lose, then SCOTUS will have to decide the issue in 20-35 years anyway. It can have egg on its face (like it did in Lawrence v. Texas- which overturned Bowers v. Hardwick and result in Justice Kennedy writing in his opinion that “Bowers was decided wrongly THEN and it is Wrong NOW.”
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