Court dismisses
attempt to force
Calif. to
defend Prop 8
Anti-same-sex-marriage activists filed suit in California's 3rd District Court of Appeal in Sacramento on Aug. 30 in an attempt to force Gov. Arnold Schwarzenegger and Attorney General Jerry Brown to defend Proposition 8 in the federal case that has been appealed to the 9th U.S. Circuit Court of Appeals. But it wasn't to be. Three days later, 3rd District Presiding Justice Arthur Scotland issued an order summarily denying the petition without comment.
Brown and Schwarzenegger and all other defendants in the federal case have refused to join the appeal of U.S. District Judge Vaughn Walker's Aug. 4 decision that Prop 8 violates the U.S. Constitution. That has left the people who put Prop 8 on the ballot, ProtectMarriage.com, as the only appellants. But as "defendant-intervenors" in the case, it is unlikely they will be found to have legal "standing" to pursue the case at the 9th Circuit.
If they don't have standing, the federal case could be over, as it would have no defendants, and Walker's ruling could take effect, making same-sex marriage legal again in California. Or, the standing issue could be appealed to the U.S. Supreme Court, though it probably would be a tough sell there. The 9th Circuit could make the decision on standing as early as December.
The Pacific Justice Institute had asked the state court for an emergency order forcing Brown and Schwarzenegger's hand. The move was considered to be a long shot, as a state court would be unlikely to attempt to order the governor and attorney general to defend a state constitutional amendment that they believe violates the federal Constitution.
Such a move could be an inappropriate intrusion by the judicial branch of state government into the affairs of the executive branch, a violation of constitutional "separation of powers." It also would have represented an unusual attempt to use a court-issued "writ of mandamus" to control matters that are within an official's discretion. Mandamus is supposed to be confined to matters of nondiscretionary duty.
If Protect Marriage is found to have standing to appeal the federal case, or if Schwarzenegger or Brown appeals, or if Imperial County succeeds in its long-shot attempt to become a defendant, then the federal case will proceed at the 9th Circuit and likely end up at the U.S. Supreme Court.
It has been thought that the American Foundation for Equal Rights and famed attorneys Ted Olson and David Boies, who brought the federal case against Prop 8, want to take it to the nation's top court. If so, Brown and Schwarzenegger's refusals to defend Prop 8 combined with Protect Marriage's standing problem have thrown a wrench into that presumed plan and the possibility of getting a ruling from the U.S. Supreme Court that might lead to legalization of same-sex marriage nationwide.
California gay leaders have said they'd be perfectly happy for the federal case to end before it starts at the 9th Circuit, with the final result being that Prop 8 is stricken from the state constitution and California gay couples can again start marrying.
While such an outcome would victoriously fulfill Olson and Boies' duty to their clients, who are same-sex California couples wishing to marry, it would be a disappointment to anyone with national hopes for the case. For their parts, Olson and Boies seem ready for both possibilities. They are simultaneously arguing that Protect Marriage lacks standing to appeal—i.e., arguing to end the case in December, leaving it to apply only in California—even as the case appears to be structured with an eye to its ending up at the Supreme Court. Calls to AFER regarding the dual strategy were not returned by press time.
Equality California denounced the lawsuit aimed at forcing Brown and Schwarzenegger's hand.
"This is an outrageous attempt to try and force elected officials who have sworn to uphold the United States Constitution to defend a law that the federal court has found to be unconstitutional," said EQCA Executive Director Geoff Kors. "It demonstrates their acknowledgement that the proponents of Proposition 8 lack standing to appeal, that the case should be dismissed and loving same-sex couples should be allowed to exercise their constitutional right to marry."
Courage Campaign Chairman Rick Jacobs had harsher words for the Pacific Justice Institute.
"With California laying off teachers, police and firefighters amidst an unprecedented budget crisis, it is the height of hypocrisy for so-called 'conservatives' to demand that California taxpayers foot the bill to defend a discriminatory law that has already been declared unconstitutional in federal court," he said. "This frivolous action shows just how out of touch and desperate those who seek to limit the freedoms of loving American families have become."
Calif. Senate
condemns Ugandan measure and
U.S. religious groups
The California Senate passed a resolution Aug. 30 condemning the pending bill in Uganda that would jail gays for life and punish some with the death penalty. The vote was 21-14.
Introduced by Sen. Mark Leno, D-San Francisco, and sponsored by Equality California, the resolution also "calls upon the United States Department of State to increase efforts to encourage the decriminalization of homosexuality in every country" and "encourages a more careful review of all United States funding and resources given to faith-based organizations in foreign countries" to ensure that U.S. money does not go to groups that disrespect human rights.
The resolution says that "some United States-based religious leaders have been fomenting fear and discrimination against the ... LGBT community in Uganda" and that "the links between some United States-based religious groups and the antigay bill ... have been well-documented."
"There is a growing movement, supported and funded by some United States-based religious groups, to further criminalize homosexuality globally," the resolution states. " ( T ) he Senate calls upon the United States Department of State to censure American citizens and organizations who contravene American foreign policy by demonstrated exportation of fear and misinformation to other countries. ..."
EQCA Executive Director Geoff Kors commented: "The U.S. government must do everything in its power to stop the bill before the Uganda ( parliament ) that would lead to the criminalization and even death of lesbian, gay, bisexual and transgender Ugandans. The California Senate has taken an important step in passing this resolution, which will help raise awareness of the crisis in Uganda and will put the state on record in support of the U.S. government strengthening its efforts to end the criminalization of LGBT people worldwide."
Leno added: "It is egregious that radical religious leaders from our nation are working to spread fears about and discriminate against lesbian, gay, bisexual and transgender people in Uganda. These deplorable actions have encouraged violence and even death against Ugandans. This resolution is a simple human rights appeal urging President Obama and our federal leaders to call for the decriminalization of LGBT people, not only in Uganda, but across the globe."
Uganda's "Anti-Homosexuality Bill 2009" would imprison for life anyone convicted of "the offense of homosexuality," punish "aggravated homosexuality" ( repeat offenses or having gay sex while being HIV-positive ) with the death penalty, forbid "promotion of homosexuality" and incarcerate gay-rights defenders, and jail individuals in positions of authority for up to three years if they fail to report within 24 hours the existence of all LGBT people or sympathizers known to them.
—Assistance: Bill Kelley
