Armwrestling With Arnold on Prop. 8

A conservative legal group has demanded in court that California state officials defend Proposition 8 on appeal.

The Sacramento-based Pacific Justice Institute argued in a petition filed on Monday in the California court of appeal that Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown abdicated their responsibilities by refusing to defend the anti–marriage equality ballot proposition — one that was ruled unconstitutional this month by U.S. district court chief judge Vaughn R. Walker.

The group filed the petition on behalf of Joshua Beckley, a senior pastor at Ecclesia Christian Fellowship in San Bernardino. It is asking that state officials formally file an appeal notice of Walker’s decision before a September 11 deadline.

Pacific Justice Institute has support for its petition from Edwin Meese III, U.S. attorney general under President Ronald Reagan. A chairman of Pacific Justice's advisory board, Meese recommended Walker for the federal bench in 1987 but has been a vocal critic of his decision in the Prop. 8 case. “This opinion is arbitrary and capricious, and its alarming legal methodology and overtly policy-driven tenor are too extreme to stand,” Meese wrote in a recent Washington Post op-ed. 

Kevin Snider, chief counsel for Pacific Justice Institute, told The Advocate that Schwarzenegger's stance denies voters the right “to a fair and meaningful review of Prop. 8 in the appellate courts.”

“No governor or attorney general has had the hubris to do this,” Snider said. 

It’s unclear whether supporters of Prop. 8, led by ProtectMarriage.com, which defended the ballot measure in court after the state declined to do so, have legal standing to appeal the case. Officials representing Imperial County, where about 70% of voters favored Prop. 8 in 2008, have also attempted to intervene in the suit.

Legal observers say that if the state were to file a notice of appeal, as Pacific Justice Institute has petitioned, the standing issue would likely be moot. But it would also mean, at least on paper, that the state believes Judge Walker erred in deciding the case, Perry v. Schwarzenegger.

California state officials have gone against the will of the voters in the initiative process before. In 1964, Gov. Edmund G. “Pat” Brown, Jerry Brown's father, supported a constitutional challenge to Proposition 14, which overturned a fair housing law passed by the state legislature in an effort to end discrimination on the basis of race, religion, and other factors.

In 1966 the California supreme court held that Prop. 14 violated the equal protection and due process clauses of the California constitution. Attorneys challenging Prop. 8 have also argued that denying gay couples the right to marry violates those same clauses of the U.S. Constitution.

A spokeswoman for Brown told the Associated Press Tuesday that “the attorney general does not believe that he can be forced to prosecute an appeal of a decision with which he agrees.”

The U.S. court of appeals for the ninth circuit is scheduled to hear the Prop. 8 appeal in December. Earlier this month a three-judge panel wrote that Prop. 8 proponents must include in their briefs to the court “a discussion of why this appeal should not be dismissed for lack of [standing].”

The court petition is available here.