“The new attorney general will play a huge role no matter what happens in the Proposition 8 litigation,” said Erwin Chemerinsky, dean of the University of California, Irvine School of Law, at a news teleconference today.
Proposition 8, the state’s 2008 voter-approved ban on same-sex marriage, was overturned in August by U.S. District Judge Vaughn Walker of San Francisco, who said it violated the federal constitutional rights of equal protection and due process.
The initiative’s supporters are now appealing to the 9th U.S. Circuit Court of Appeals, which has put Walker’s ruling on hold until the appeal is resolved. The court will hear arguments in San Francisco the week of Dec. 6.
Chemerinsky, an expert on constitutional law, said the choice of a successor to Jerry Brown as California’s top lawyer is significant because of the unusual legal situation in the defense of Proposition 8.
Brown and Gov. Arnold Schwarzenegger were both named as defendants in a lawsuit filed by two same-sex couples, but both declined to defend Proposition 8. Brown additionally argued it is unconstitutional.
Walker allowed the sponsors of Proposition 8 and their committee, Protect Marriage, to defend the measure in his court. But one question currently before the 9th Circuit is whether the sponsors even have the legal standing to pursue an appeal if state officials won’t do so.
As a result, Chemerinsky said, the new attorney general, and to a lesser extent the new governor, could affect the litigation in several ways.
The Republican candidates for attorney general and governor, Los Angeles District Attorney Steve Cooley and former eBay CEO Meg Whitman, have said they would step in to defend Proposition 8.
The Democratic candidates – San Francisco District Attorney Kamala Harris for attorney general and Brown for governor – said they would continue to refuse to defend it.
Chemerinsky said that if Cooley or Whitman is elected, either or both could seek to enter the case before the appeals court. The appeals court could allow them to participate either as an official party or as a “friend of the court” with lower legal status.
But arguments about which status the newly elected officials would have could delay proceedings for several months.
“For those who believe in the right to marriage, the further delay could be very troubling,” Chemerinsky said.
The dean said that if the appeals court were to decide that the Proposition 8 sponsors had no right to appeal, and additionally refused to allow a new governor or attorney general to become an official party, then Walker’s decision would likely be left in place.
But in that event, the governor or attorney general could go back to U.S. District Court and ask for reconsideration of Walker’s decision, Chemerinsky said.
Any reconsideration would probably be conducted by a different trial judge because Walker recently announced he will retire in February.
Chemerinsky said that either a governor or an attorney general could ask for reconsideration, but that the attorney general as the state’s top legal officer would have more clout in doing so.
Finally, Chemerinsky said, if Proposition 8 is upheld by the appeals court or the U.S. Supreme Court, same-sex marriage supporters might seek a new ballot initiative to overturn the measure.
Because ballot summaries are prepared by the attorney general, “Who is attorney general makes a difference,” Chemerinsky said.
In all, he said, “The attorney general can matter greatly when it comes to marriage equality in California.”
Chemerinsky, 57, is the founding dean of the UC Irvine School of Law, which opened in 2009. He previously taught at the Duke University and University of Southern California law schools.
Today’s telephone news conference was sponsored by Equality California, a statewide group that works for gay, lesbian, bisexual and transgender rights.
The group filed a friend-of-the-court brief in Walker’s court in support of a lesbian couple from Berkeley and a gay couple from Burbank who filed the federal civil rights lawsuit challenging Proposition 8.
A spokeswoman for Protect Marriage was not available for comment.
This year’s trial before Walker was the nation’s first in a federal court on a challenge to a state ban on same-sex marriage under the U.S. Constitution.
The exact date of the 9th Circuit hearing in December will be announced about six weeks beforehand, while the names of the three judges who will hear the case will be revealed about 10 days in advance.
The appeals panel will have no deadline for issuing a written ruling, but the court has said it is handling the case on an expedited basis.
The three-judge panel’s ruling can be appealed to an expanded 11-judge panel of the 9th Circuit and then to the U.S. Supreme Court.
Julia Cheever, Bay City News