Court permits Prop. 8 backers to defend law for Attorney General

Judge Vaughn R. Walker
Judge Vaughn R. Walker


The U.S. District Court has agreed to allow to defend   Proposition 8 in a lawsuit, after the state's Attorney General, Jerry Brown, refused to do so. The ruling will allow the coalition to defend the successful California initiative from last November that restored marriage to being only between a man and a woman in the state constitution.

Andrew Pugno, general counsel for, has said that he is “pleased that the court will allow us to defend marriage and the will of the people against challenges to the voter-approved measure.”

“This decision will give the official proponents of Proposition 8 a full seat at the table in this litigation,” Pugno told CNA, observing that the coalition will now have the same rights and powers as the other participants in the case.

In its decision, the U.S. District Court, Northern District of California noted that California Attorney General Brown was not defending the law, claiming that the voter-approved proposition was unconstitutional, despite the ruling of the California Supreme Court last May, which upheld the constitutionality of the proposition.

Today's ruling observed that “although the responsibilities of the Attorney General of California contemplate that he shall enforce the state’s laws in accordance with constitutional limitations, Attorney General Brown has informed the court that he believes Prop 8 is unconstitutional.”  

“This should be disturbing to the people of California, since the constitutional duty of the Attorney General is to defend measures passed by voters,” Pugno told CNA.

Pointing to other legal challenges against traditional marriage in California law, he added that “today’s ruling designating us to defend Prop. 8 reflects the unfortunate fact that, if left up to state officials, the will of the people would not be defended at all.”

Cases in which California's Attorney General has refused to defend an existing law are extremely rare.  One such instance was in 1964, when California voters approved Proposition 14, which would have allowed for racial discrimination in selling and renting houses.  In that case, the state’s Attorney General refused to defend the law, claiming that it was blatantly unconstitutional.  Both the California and U.S. Supreme Courts agreed, striking down the proposition. 

Attorney General Brown has recently tried to draw parallels between the two situations, telling the Huffington Post, “As California's Attorney General, I believe the Court should strike down Proposition 8 for remarkably similar reasons -- because it unconstitutionally discriminates against same-sex couples and deprives them of the fundamental right to marry.”

Perry v Schwarzenegger, a lawsuit filed in May, challenged the constitutionality of Prop. 8. In addition, a motion for a preliminary injunction was also filed, which would suspend Prop. 8 and allow same-sex couples to resume obtaining marriage licenses while the case worked its way through the courts. A hearing to determine whether the injunction will be ordered is scheduled to take place tomorrow.

However, U.S. District Court Chief Judge Vaughn R. Walker suggested using tomorrow's hearing to set a trial schedule instead.  The judge said that a quick trial would be favorable to avoid that confusion that may be caused for the state if a temporary injunction were to be ordered.

Both Attorney General Brown and Governor Schwarzenegger have argued against the injunction, saying it will create too much chaos and complexity.  Both have also voiced support for a quick hearing of the case.

Pugno told CNA that despite being granted intervenor status, will not be receiving taxpayer funds to support them in defending Proposition 8. “The cost and burden will fall entirely upon the proponents and their supporters,” he said.

Yet in spite of these obstacles, Pugno remains hopeful about the future of Proposition 8. 

“Marriage between a man and a woman predates government, is recognized as the foundation of the family, and has been twice reaffirmed in a statewide vote as the will of the people in California,” he explained.  “We look forward to helping safeguard what the voters have put in place as this lawsuit moves forward.”

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