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California’s Governor And Attorney General Not Required To Appeal Walker Ruling

09/04/10-by Bridgette P. LaVictoire
Neither Governor Arnold Schwarzenegger nor Attorney General Jerry Brown have to appeal Judge Vaughn Walker’s decision to declare Prop 8 unconstitutional California’s 3rd District Court of Appeals has ruled.

Supporters of Prop 8 had hoped to force the state to appeal the ruling, but so far, no one has been willing to. The Pacific Justice Institute had hoped that they could force these two to appeal the ruling since it is quite possible that the groups which Judge Walker allowed to argue in defense of Prop 8 may not have any legal standing to appeal the ruling. If the 9th Circuit Court of Appeals rules that they cannot appeal the ruling, then the ruling stands and goes no further unless appealed by either Schwarzenegger or Brown, both of whom have declined to do so.

According to Kevin Snider, writing for the PJI:

The duty to defend peacefully enacted laws is at its zenith when the voters have amended their own constitution. Should these elected members of the executive branch refuse to defend a constitutional amendment enacted in this manner, the Governor and the Attorney General will have seized an extra constitutional power by creating what is tantamount to a constructive veto.

The PJI will appeal the decision by the California 3rd District Court of Appeals, but they may not succeed in the California Supreme Court. Judge Walker ruled that the same-sex marriage ban violated the Due Process clause of the 14th amendment as well as the idea of Equal Protection found in the Constitution. Because neither Schwarzenegger nor Brown were willing to defend ban, Walker granted a request by Protect Marriage that they be allowed to defend the law in court. Defendant-intervenors are allowed at the discretion of the court, and it is not always that they will be allowed to appeal the decision if it goes against them. The current defendant-intervenors in the case hope to push this to the Supreme Court, but if they cannot find a legal standing to appeal, then the case will end with Walker’s decision.

The opponents of same-sex marriage are hoping that the Supreme Court will rule in their favor due to prior decisions by the court regarding marriage equality. At the time, the Supreme Court ruled that the Federal Government had no standing with regards to marriage rights. Since that point, case law has shifted and the enactment of the Defense of Marriage Act has obliterated the local and state argument.

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