Assault on Marriage Continues in CA Courts But Survives Legislative Challenge in MD
San Francisco, CA – Final briefs have been filed by opponents of Proposition 8 seeking to lift the stay that was imposed by the Ninth Circuit. The stay was put in place after Judge Vaughn Walker ruled the traditional definition of marriage unconstitutional. In what can best be described as an unorthodox legal argument, an attorney for the homosexual plaintiffs, former solicitor general Theodore Olson, cites as authority for lifting the stay the decision by the U.S. Dept. of Justice not to defend the Defense of Marriage Act in litigation in other courts. “I’m aware of no other case in which a lawyer has cited a letter by the Department of Justice to Congress as persuasive legal authority,” said Brad Dacus, president of Pacific Justice Institute. The Ninth Circuit has retained jurisdiction over the matter while it has sent the case to the California Supreme Court.
The Ninth Circuit sent the Prop 8 case to the California Supreme Court to determine whether the official proponents “possess a particularized interest in… [Prop 8’s] validity or the authority to assert the State’s interest… to defend the constitutionality of the initiative… [on appeal] when the public officials charged with that duty refuse to do so.” The State’s high court agreed to answer that question and ordered briefing by the parties and set a schedule for amicus (friend of the court) briefs. Yesterday the official proponents of Prop 8 filed their opening brief arguing that historically California courts have permitted official initiative proponents to defend matters appearing on the ballot. The California Supreme Court has found that this is particularly necessary when governmental entities have “underlying opposition” to an initiative or “will not [defend]… with vigor.” At oral argument, Judges Reinhart and Smith appeared to be particularly concerned by the failure of the Governor and the Attorney General to file a notice of appeal and defend the case in court. This was reflected in the 16 page order certifying the legal question to the California Supreme Court. Reinhart and Smith questioned the attorneys during oral argument about the petition filed by PJI lawyers in the California Supreme Court to force then Governor Schwarzeneggar and Attorney General Brown to file a notice of appeal. PJI will continue to raise crucial legal issues by filing an amicus brief in the State’s Supreme Court in support of the proponents of Prop 8.
On another front, the Maryland legislature shocked gay rights proponents by declining to pass a bill legalizing same-sex marriage late last Friday. In a procedural move, the bill was sent to the Judiciary Committee where it was effectively killed.