California Supremes rebuff Prop 8 proponents

The forces that want to keep Proposition 8, the voter-passed
constitutional amendment that re-banned same-sex marriage in California,
can’t catch a break.

The state Supreme Court on Sept. 7 slapped down an effort by conservative
activists to force Gov. Arnold Schwarzenegger and Attorney General Jerry
Brown to defend Prop 8 in the federal case that was appealed to the 9th
U.S. Circuit Court of Appeals after U.S. District Judge Vaughn Walker
found in August that Prop 8 violates the U.S. Constitution.

None of the governmental entities that were sued in the federal case is
interested in defending Prop 8, so the appeal to the 9th Circuit was filed
by the activists who put Prop 8 on the ballot. It is unlikely, however,
that the activists have “standing” to mount an appeal, since it’s not
their job to defend California’s constitution.

Worried about such a determination, conservative forces have been trying
to find some other route to assure that the 9th Circuit hears the appeal
— including pressuring defendants Brown and Schwarzenegger and pushing to
add Imperial County, located in the southeast California desert, as an
official defendant. The 9th Circuit will make the call on the county’s
long-shot effort, probably in December, when it also will take up the
question of whether the pro-Prop 8 activists have standing. If they do,
the 9th Circuit will then move on to hear the appeal of Walker’s actual
ruling.

If the activists do not have standing and Imperial County can’t become a
defendant, the case is over and same-sex marriage is legal again in
California, unless the activists attempt to appeal the standing question
to the U.S. Supreme Court. That, too, would be a long shot, many legal
experts believe. They say the Supreme Court would be unlikely to conclude
that displeased citizens can step into a state government’s shoes to
defend a state law that the state government itself refuses to defend and,
indeed, believes violates the U.S. Constitution.

In rejecting the activists’ latest move, the California Supreme Court
denied review without comment.

By Rex Wockner