The Importance of the Timeline in the Prop 8 Appeal
Much attention has been paid to the news on Friday, August 20, the California gubernatorial candidate Meg Whitman (R) told the Sacremento Bee that she would defend Proposition 8 in court if elected governor on November 2. Her opponent, current California Attorney General Jerry Brown (D), refused to defend the amendment at trial and said in court filings that he believed the amendment to be unconstitutional when it was challenged in Perry v. Schwarzenegger.
Now that U.S. District Court Judge Vaughn Walker has agreed and found the amendment to be unconstitutional, Brown unsurprisingly has said he will not defend the amendment on appeal. Governor Arnold Schwarzenegger (R), who had not defended the law at trial but gave no opinion as to its constitutionality, opposed a stay of the decision that the proponents of Proposition 8 had sought, unsuccessfully, from Walker.
When the proponents took their request for a stay to the U.S. Court of Appeals for the Ninth Circuit, Brown filed similar papers opposing the stay, and, though Schwarzenegger’s argument below was a part of the record before the appellate court, the administration filed no further opposition to the sought stay.
Now that the Ninth Circuit has put a stay in effect, and same-sex marriages are on hold in the state until the appellate court can hear the case, the political heat has been on candidates to give their views on the case. Brown, obviously, has been a clear opponent of the law and would continue to oppose the law as governor. Whitman, who has said she voted for Proposition 8, announced on Friday that she would enter the case because, more or less, the case should be heard. She said:
“The issue right now is, as I understand it, is ‘Will Proposition 8 have the appropriate support to actually make an appeal to the Circuit Court of Appeals?’
“And I think the governor, the attorney general today has to defend the constitution and has to enable the judicial process to go along and has to enable an appeal to go through. So if I was governor, I would give that ruling standing to be able to appeal to the circuit court.”
Although Whitman’s statements on August 20 were her first definitive — if somewhat inarticulate — statements on the matter, her fellow Republican nominee, Attorney General candidate Steve Cooley, had already long said that he opposed Brown’s actions regarding the case. His Democratic opponent meanwhile, San Francisco District Attorney Kamala Harris, is on the other side of that fence, writing in an email sent to Equality California’s mailing list, “I will never defend the anti-LGBT Proposition 8 in federal court.”
So, the Democrats support opposing Proposition 8 and the Republicans oppose opposing the measure. The question, then, is: Does it matter?
As the Courage Campaign’s Rick Jacobs pointed out regarding the timing of the appellate hearing, which is set for the week of December 6, “She wouldn’t be governor yet. The appeals court will decide before there would be a change of governor and attorney general.”
Although the court has no obligation to decide the case prior to January 3, 2011, when the new governor and attorney general are to take office in California, Jacobs is at least correct that the briefing and oral argument in the case will have been done and the case will be considered submitted to the court for decision.
In fact, in what appears to be a coincidence of timing, the proponents’ reply — or final — brief in the case is due to be submitted to the court on November 1, or the day before Election Day. And the court’s short order detailing the briefing noted specifically
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