Out of Her Hands?

Whether the candidates for governor and attorney general of California really have strong feelings about marriage equality or they just think can use the issue to get elected to office, all four have made their stances clear. Democratic attorney general Jerry Brown won't defend Proposition 8 in court, while his GOP gubernatorial opponent, Meg Whitman, would if given the chance. Los Angeles County Republican district attorney Steve Cooley, running for attorney general, also would defend Prop. 8, while San Francisco DA and Democratic candidate for attorney general Kamala Harris will not.

"It would be inappropriate for a state on the verge of bankruptcy to use all of those resources to defend a law found to be unconstitutional," Harris tells The Advocate.

It's virtually impossible for Harris or Cooley (or Whitman) to get involved in the appeal of federal judge Vaughn Walker's August 4 decision to overturn Prop. 8. A three-judge panel of the ninth circuit court of appeals will decide this winter if proponents of Prop. 8 even have standing to appeal, since the defendants in the case involving the gay marriage ban -- current governor Arnold Schwarzenegger and current attorney general Jerry Brown -- refuse to argue with Walker's decision. The three judges will delve into the matter during the week of December 6, but whoever is elected the new governor and attorney general won't take office until January -- too late to defend, or not defend, Prop. 8. The next AG or governor will likely not be allowed even to file amicus briefs, according to some legal experts.

Harris says she may be able to voice her opinion when it comes to other jurisdictions trying to intervene in the Prop. 8 appeal, as California's conservative Imperial County hopes to do.

"I can imagine a scenario where the attorney general could render an opinion as to the feasibility of a county having jurisdiction to appeal," Harris says. "Another role of [attorney general] is to use the position as a bully pulpit in support of people who need a voice."

It's not clear what would happen should the Prop. 8 case make it to the U.S. Supreme Court at a time when California has a governor and an attorney general supportive of the 2008 voter-approved initiative. The legal director of Lambda Legal, Jon Davidson, is well-versed on this case. but even he doesn't entirely know what to expect.

In an interview on The Huffington Post, Davidson says, "What I am not sure about, and have not had time to research, is whether, when a government official or body fails to appeal to one level of a court system, a new government official who wants to appeal on his or her own behalf or on behalf of a government body is entitled to do so. I would guess not."

Even if the future leaders of California are locked out of the fight over Proposition 8, Harris says the cause of marriage equality will be aided by having support at the highest levels. "We have to have the right person in office in California," she says.