Box Turtle Bulletin

Box Turtle BulletinNews, analysis and fact-checking of anti-gay rhetoric
“Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife…”
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Posts for September, 2010

CA Supremes: Gov and AG need not appeal Perry

Timothy Kincaid

September 9th, 2010

After the Pacific Justice Institute was laughed out of court for claiming that Governor Schwarzenegger and Attorney General Brown should be forced to appeal the decision in Perry v. Schwarzenegger, PJI appealed the 3rd Appeals court’s dismissal to the California Supreme Court.

And they got all excited when the CA Supremes asked Schwarzenegger and Brown to weigh in on the appeal. (Karen Ocamb)

The California Supreme Court has ordered the Attorney General and the Governor to respond by 9 am this morning explaining why they have not filed this appeal. Then the Pacific Justice Institute has just three hours to respond by noon today.

“We are pleased that the judicial branch is at least considering forcing the executive branch to do its job,” said Karen England, Executive Director of Capitol Resource Institute.

So the Governator and the Attorney General sent a letter to the court reminding them that they have discretion to appeal or not appeal and that this discretion is part of the constitutionally protected separation of powers. (And while it was expected and understood that neither wished to appeal, this is where the Governor went on record stating that he would not do so.)

And then the CA Supreme Court yawned and “denied review Wednesday without comment.”

So now it is official. Neither the Governor nor the Attorney General will be appealing the reversal of Proposition 8. But we will probably have to wait until the first week of December to find out whether the Ninth Circuit Court of Appeals will find that the appellants (the organization that sponsored Proposition 8) have any standing to appeal the case without them.

Gov and AG will not be forced to appeal Prop 8 decision

Timothy Kincaid

September 2nd, 2010

As anticipated, the Pacific Justice Institute’s lawsuit to force Governor Schwarzenegger and Attorney General Brown to appeal Judge Walker’s decision in Perry v. Schwarzenegger was laughed out of court. Okay, I don’t know that anyone laughed (they may have just rolled their eyes) but is was “summarily denied”.

PJI and Meese argue nonsense, sue Governor and AG

Timothy Kincaid

September 1st, 2010

Is there a polite way of saying, “dumber than a bag of hammers”? Because if so, I think that Pacific Justice Institute may deserve the title. (WaPo)

A conservative legal group is trying to force Gov. Arnold Schwarzenegger and Attorney General Jerry Brown to defend California’s gay marriage ban in court.

The Pacific Justice Institute petitioned the 3rd District Court of Appeal in Sacramento on Monday for an emergency order that would require the two officials to appeal a ruling that overturned Proposition 8.

And they have got former Attorney General Ed Meese to support them.

Meese, who served one term as attorney general under President Ronald Reagan and Reagan’s legal adviser when he was governor of California, said that Schwarzenegger and Brown’s positions were at odds with his own experience.

“Governor Reagan never refused or declined to defend a state law or state constitutional provision, regardless of his own opposition or dislike for a challenged provision,” he wrote. “As attorney general, I never refused or declined to defend a law on the basis that I disagreed with the law as a matter of policy.”

Okay, I’m not an attorney. But you don’t have to have studied law to know that no one has the obligation to appeal a decision.

Perhaps if there had been no defense of the proposition, they might have an argument. But Proposition 8 had its day in court and it lost. Mightily.

The Governor, and the Attorney General are not automatons who as a matter of rote appeal every court decision that comes their way but are officials elected to make decisions, including evaluating the cost and effectiveness of appeal and determining the best interest of the State.

I’ll be quite astonished if this suit (in State court, incidentally) isn’t thrown out on its ear.

Schwarzenegger and Brown oppose stay on Perry decision

Timothy Kincaid

August 6th, 2010

Governor Arnold Schwarzenegger and Attorney General Jerry Brown, the official defendants in Perry v. Schwarzenegger, have both filed motions requesting that Judge Walker not put a stay on his decision but instead allow the state to being granting marriage licenses to same-sex couples immediately.

The right way to defend an unfair, undefendable, and unconstitutional law

Timothy Kincaid

June 17th, 2010

The transcript of the closing arguments in Perry v. Schwarzenegger is now available. Please read them, you won’t regret the lost time. This is oratory at it’s best, advocacy at its most moral, and a complete and total exposure of the absolute lack of any reasonable basis for anti-marriage discrimination.

But just as an amusing side note, the formality of law does have its theater.

The same-sex couples who wished to marry in California after Proposition 8 passed sued Governor Schwarzenegger, Attorney-General Brown, and the county clerk in their official capacities. Here was the defense of the proposition on the part of Schwarzenegger and Brown:

THE COURT: Let me turn to counsel for the Governor and the Attorney General.
Ah, the governor’s counsel.

MR. STROUD: Andy Stroud on behalf of the Governor, your Honor. The Governor waives his right to make closing argument and thanks your Honor for his time.

THE COURT: All right. I’m delighted that you are here.
(Laughter.)

THE COURT: Yes.

MS. INAN: Michele Inan on behalf of the Attorney General. The Attorney General waives his time as well.

And that’s how you fulfill your obligation to defend the undefendable, not at all.

CA Attorney General Asks Court to Overturn Proposition 8

Timothy Kincaid

December 20th, 2008

It is the duty of the state Attorney General, the very definition of his job, to represent the political actions of the state before the courts. Therefore it is very rare for an Attorney General to argue against the actions taken by the legislature or the voters of the state.

Yet that is exactly what Jerry Brown, Attorney General of the State of California, is doing. Brown has submitted a legal brief stating that the amendment to the State Constitution passed in November is itself unconstitutional (Sacramento Bee). This is particularly fascinating because Brown had earlier indicated that he would defend the proposition before the courts.

In a dramatic reversal, Brown filed a legal brief saying the measure that amended the California Constitution to limit marriage to a man and a woman is itself unconstitutional because it deprives a minority group of a fundamental right. Earlier, Brown had said he would defend the ballot measure against legal challenges from gay marriage supporters.

But Brown said he reached a different conclusion “upon further reflection and a deeper probing into all the aspects of our Constitution.”

“It became evident that the Article 1 provision guaranteeing basic liberty, which includes the right to marry, took precedence over the initiative,” he said in an interview Friday night. “Based on my duty to defend the law and the entire Constitution, I concluded the court should protect the right to marry even in the face of the 52 percent vote.”

This decision also may reveal political calculation. Brown wants to be re-elected Governor in 2010 (he served from 1975 to 1983) and may have taken that desire into consideration. If that played into his decision, it may suggest that Brown believes that the opposition to Prop 8 may hurt him irrevocably in the primary while not helping him in the general election.

Or perhaps he just couldn’t live with himself arguing that the freedoms and rights for all in the State of California have an asterisk when it comes to gays.