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Proposition 8: A scolding for Schwarzenegger and Brown

arnold schwarzeneggergay marriagejerry brownninth circuitproposition 8same-sex marriage

In Monday's editorial on the Proposition 8 hearing, The Times' editorial board argued that Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown should have defended the initiative in federal court. Without them, the defenders of the initiative faced tough questioning from judges on whether they had legal standing to argue for the same-sex marriage ban before the U.S. 9th Circuit Court of Appeals, possibly keeping the matter from being decided on its merits. The judges on the panel hearing the case Monday appeared to agree.

"What we have here is an attorney general and governor with no ability to nullify the acts of the people, and then, by not appealing, they do it," Judge N. Randy Smith complained. 

Judge Stephen Reinhardt called it "tossing in the towel."

"That does not seem to be consistent with the initiative process," he said.

Your thoughts? If the governor and attorney general (who's about to become governor) oppose an initiative passed by the voters, are they taking the moral high ground by refusing to defend it? Or are they reneging on the responsibilities of their jobs?

-- Karin Klein


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Comments () | Archives (17)

The comments to this entry are closed.

Liz inCA

Well, the last time I looked, EVERYONE has the right to *not* appeal a decision against them, if they don't want to. So what! You can very legally, and without some kind of 'agenda,' simply not appeal a decision against you, believe it or not! The Governor and Attorney General know that Prop 8 is WRONG, and denies people their rights. They are upholding California to a greater standard than the wishes of a bunch of haters who were backed by outside-of-state money and interests. Good for them.


IMO Prop 8 is indefensible.


You can't expect those who oppose a law to defend it! That's like asking DEA nominee Michelle Leonhart to defend medical cannabis, or asking Martin Luther King Jr. to defend racial segregation laws!

If Steve Cooley had been elected, he would have attacked our medical cannabis laws, when he would have been supposed to implement them. As anti-cannabis as the LA Times is, I can't imagine that the LA Times would have been opposed to that, so this position that the Times has taken is only applies to some cases and not to others.

Love Thy Neighbor

Both Schwarzenegger and Brown *swore an oath* to uphold the Constitution.

If the (tyrannical) majority attempts to use the initiative process to insert federally unconstitutional language into the CA state constitution, then it is not only the moral high ground, it is the *DUTY* of folks like Schwarzenegger and Brown to do whatever they can to thwart that attempt.

Judge N. Randy Smith was wrong. The governor does in fact have some ability to nullify the "acts of the people" (that were primarily funded by religious zealots who live outside the state, if you remember). And he exercised that ability by refusing to defend the load of dreck that Proposition 8 was and is.

As a straight Christian woman I have to say: Thank goodness for all of us.


If this were not a DISCRIMINATORY initiative, we would not be having ANY of this dialogue.


Brown was an elective enforcer. He did not care about what the voters decided if it went against his personal thoughts. As governor, again, he will do the same.

This will go to the Supreme Court where real judges will decide.


Brown already addressed this during the second debate with whatshername. Voter initiatives are not law and are not "constitutional". Prop 8 goes AGAINST the equal protection rights, giving both Brown and Arnold perfect reasoning to decide not to "defend" them. Who wrote this "Opinion" piece??? LA times knows this already, why stir things up with unfounded arguments??? Voter initiatives are b.s. So, if for some reason the citizens of california try to pass a new prop, blocking black people from voting, would the atty gral and gov be forced to defend it???? This is the same thing, as ridiculous as it sounds. Brown and Arnold's aliiegance is to the constitution, not to the voters.


It depends on if we want a state run by law or by the opinions of politicians. The progressive framers of the initiative process designed the process as a protection against the excesses of government power. They wanted a way where the people of the state could directly control how we should be governed.

On one hand, if the people want law, such as Prop 8, that offends another group, it's easy to say that the government should not uphold the people's will. On the other hand, if the people want a law to remove corrupt politicians, you don't want the government to say, "Sorry, but we don't agree with the people, so we won't enforce it."

This issue is more than about gay marriage. It is about the power of the people and our role in government.


Ahnuld and Brown were correct in protecting a minority (gays and lesbians) against the tyranny of the majority. They have no obligation to defend a constitutional amendment that is unconstitutional. Say all you want to about domestic partnerships, inheritance and child custody being equal for all couples. Without state-sanctioned marriage, it's still separate, and separate-but-equal was already defeated more than 50 years ago in Brown vs. Board of Education.

Today's proponents of Prop 8 will in history be viewed as those who staunchly supported segregation in the 50's and 60's. That is, as irrational bigots.


Under the supremacy clause, the governor and the state attorney general have an overarching duty to support the U.S. Constitution against its depredation by state law, so if they believe the federal constitution requires them to throw in the towel, they are constitutionally required to do so.

Dayle Deer

If the Governor and the AG were asked to fight for a voter inacted constitutional amendment that said that all Blonde Women would be unable to get married and had to have special Blonde unions with most of the rights of marriage, should that be defended just because the voters passed it? I think not. When a group funded by large corporate religious interests convinces a slight majority of voters to write discrimination into our constitution, it is reasonable that a Governor and AG who stands for all of the people would not be willing to defend that law in court. And why should the State spend valuable money on defending prejudice and discrimination? After all this is not Oklahoma.


They had every right not to appeal. Normally, a governor and an attorney general might pay the price for not following the people's will. People wouldn't vote for them. In the case of Schwarzenegger, this was moot as he was not running again. But in the case of Jerry Brown, voters knew that he refused to pursue this and they opted to elect him to the Governorship anyway. Perhaps the voters had second thoughts?


Savyydude, if you get your wish and "real judges" decide the way you want, will that be an example of Judicial Activism?

Don Narey

Did anyone really expect the Governor of California to challenge the AMA, Amer Academy of Pediatrics, National Assoc of Social Works, Federation of Teachers, Assoc of School Psychologist and a long list similar groups, in court? Would the times be praising him if he were dismissing decades of research and thought based on nothing but his own inherent knowledge on the dangers homosexuals pose to children? The Governor was faced with defending a constitutionally dubious law based on a premise previously struck down by his own state's supreme court against a mountain of opposing evidence and with virtually no credible testimony. So, he chose to do nothing. That's hardly being reckless. The times in confusing the obligation to uphold the law with thoughtlessly defending it against its inevitable judicial review.

Joseph Styles

The Times Editorial Board has it wrong: the issue of standing is not a "legal technicality," but one that goes to the very heart of the case--which is the issue of who is harmed by Proposition 8, and who is harmed if it is overturned. The answers--which, ironically, the Editorial Board agrees with--are "same-sex couples desiring to marry" for the first question, and "no one" for the second.

Apparently, the Times Editorial Board believes that "no one" deserves its day in court, despite the fact that it is "same-sex couples desiring to marry" who were the ones harmed by this preposterous and bigoted proposition.


The ones who should have "defended" Prop 8 were its supporters in the trial below in front of Judge Walker. By calling no witnesses and presenting almost no facts, they, in essence, "threw in the towel" themselves by presenting no case.

If you want to persuade a judge (or jury) in a court of law, you put on a case. You present facts and you call witnesses to back up your facts. If you choose not to do that in a trial, don't blame anybody else who, after the fact, chooses not to defend your completely deficient non-case.

Mark L Holland

And thank the Gods that they recognized a discriminatory and bigoted Christian law that should never have been allowed to begin with. Separation of Church and State folks.



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