I Don't Want No Special Rights

Hmm. Governor Schwarzenegger and California Attorney General Brown have declined to appeal the decision striking down Prop 8.  Yay.


The Pacific Justice Institute has filed a lawsuit saying that California Government Code Section 12512 requires the state to file an appeal.  Here’s what the Section 12512 says:

The Attorney General shall attend the Supreme Court and prosecute or defend all causes to which the State, or any State officer is a party in his or her official capacity.

I’m no lawyer.  I have no idea what the hell that entails, or whether the Pacific Justice Institute is correct.  Unfortunately, when I turn to a group like Equality California, I find something this statement:

This is an outrageous attempt to try and force elected officials who have sworn to uphold the United States Constitution to defend a law that the Federal Court has found to be unconstitutional. It demonstrates their acknowledgment that the proponents of Proposition 8 lack standing to appeal, that the case should be dismissed and loving same-sex couples should be allowed to exercise their constitutional right to marry.

See, that’s messed up.  Yeah, a Federal Court judge has found Prop 8 to be unconstitutional (yay!).  But we know he’s not the final word on the issue.  And we know that if Judge Walker had ruled against us, Equality California wouldn’t be acting like Walker is the be-all and end-all of Constitutional law.  I wish Equality California had directly addressed the claims made by the Pacific Justice Institute.

Even the Courage Campaign, for whom I now write, is making me uncomfortable:

With California laying off teachers, police and firefighters amidst an unprecedented budget crisis, it is the height of hypocrisy for so called ‘conservatives’ to demand that California taxpayers foot the bill to defend a discriminatory law that has already been declared unconstitutional in federal court. This frivolous action shows just how out of touch and desperate those who seek to limit the freedoms of loving American families have become.

I see two issues here:

  1. There’s a legal issue, which I’m entirely unqualified to speak to.
  2. There are the responses from Equality California and the Courage Campaign, which don’t seem to attempt to address the legal issues involved.

Here’s the thing.  You can’t just shift your reasoning and rhetoric to accommodate what you want.  We are a principled people.   All I really want to know is this:  Is the Pacific Justice Institute correct in saying that Government Code Section 12512 requires Schwarzenegger and Brown to appeal the Prop 8 ruling?

That’s what our advocacy groups should focus on. The answer doesn’t depend on what we would like the governor and attorney general to do.  And I have to say I’d be disappointed that groups on our side, devoted to civil equality, are approaching it any other way.

Anyway, I’ve referred this to lawyer friends of mine.  I’ll get back to you.  And I’ll be happy — even eager – to apologize publicly if I’m off base.

UPDATE: It looks like the Pacific Justice Institute’s lawsuit to compel Schwarzenegger and Brown to defend Prop 8 is a moot point. PJI’s lawsuit was summarily dismissed.

Still, I do wish the spokespeople of the big gay groups had responded a bit more to the legal issue instead of just sending out rhetoric.

In any case, yay.

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20 comments to I Don’t Want No Special Rights

  • 1
    David Estlund says:

    This is why equality via the courts is such a sticky wicket. Equality through the ballot box obviously doesn’t work, but when you have to upheave the disastrous results of “majority rules + they’ll pervert your children” politics, the results can not only be tied up in the courts for ages, but even once the highest court in the land rules (if it ever does), it’ll get rolled right into the Culture Wars tar-baby. Because they didn’t come along with us. And we ruined America, personally.

  • 2
    Brad W says:

    Thank you so much for saying this! I read both of these responses earlier today and was thinking the exact same thing. It’s not going to help if marriage equality advocates start basing their arguments solely on emotion.

  • 3
    Anonygrl says:

    OK… I am not a lawyer.

    But the only thing I saw in all that which seemed to pertain was the following:

    12510. The Attorney General is head of the Department of Justice.

    12511. The Attorney General has charge, as attorney, of all legal
    matters in which the State is interested, except the business of The
    Regents of the University of California and of such other boards or
    officers as are by law authorized to employ attorneys.

    12512. The Attorney General shall attend the Supreme Court and
    prosecute or defend all causes to which the State, or any State
    officer is a party in his or her official capacity.

    Re 12510, we knew that.

    Re 12511, that makes sense… the Attorney General has charge of all legal matters in which the state is interested…

    Re 12512 He did attend (well, he was represented) at the Prop 8 trial. He did not defend as the State and other State officers declined to do so. I don’t see where it says he HAS to defend, if no defense is being raised by the state.

    Schwarzenegger, for the State, decided that Prop 8 was unconstitutional by the US Constitution, which meant it was his job not to defend it, because defending the US Constitution IS part of his job, and takes priority.

    Brown, who was named a defendant, came to the same conclusion, and opted not to defend. As the lawyer for the State, even if he did not want to defend, but Schwarzenegger did, Brown would have had to. This did not come up.

    So I think that this “MUST DEFEND!!!!” business is just more noise by the Defendant Intervenors to try and get SOMEONE to actually have standing in the appeal.

    Besides, no where does it say that the State must APPEAL once a decision has been rendered. The State can (actually has done, as both the Governor and Attorney General urged the judge NOT to issue a stay, but to move right on with allowing marriages to resume) accept the ruling and simply drop the matter, and no one can force them to carry it further.

    The time to press Schwarzenegger and Brown to participate in the case has long passed. Just my opinion though, I would be interested in what your lawyer friends have to say.

  • 4
    Ann S. says:

    There are precedents for an AG and governor not to defend a law they believe to be unconstitutional. I can’t name them off the top of my head, that would take some research, which I am too tired to do at the moment.

    I don’t think this has much chance, I think it is grandstanding, but I am not an expert.

    I am curious why they went straight to the California Court of Appeals, rather than starting in District Court they way most cases do.

    I’ll be checking back to see what others have to say who know more than I do.

  • 5
    Ann S. says:

    What time zone is your blog in, anyway? It looks as though we are all posting in the middle of the night.

  • 6
    Mykelb says:

    The word “shall” means should. It doesn’t mean “is required” or even “must”. Lawyers parse every word of every sentence and believe me the word shall will be their “out” on this one.

  • 7
    Luis says:

    Thanks, Rob. I saw the Courage Campaign post on Facebook and was deeply bothered by it, for the exact same reason. I appreciate that you took the time to write this post outlining how (I imagine) quite a few people felt. We’ll just have to see whether the PJI, whoever they are, have a point.

  • 8
    Christopher Mongeau says:

    There may not be a clear answer to your very important question, Rob. I saw this in another article:

    “The lawsuit includes a sworn Declaration from former U.S. Attorney General and legal advisor to Governor Reagan, Edwin Meese III. Meese affirms that neither he nor Governor Reagan refused to defend duly-enacted laws based on personal disagreement with the laws. Former California Attorney General Dan Lungren has also publicly stated his belief that it is the attorney general’s duty to defend all state laws, regardless of his personal feelings or beliefs.”

    Mr. Lungren’s statements in this regard, that it’s his “belief” regarding the AG’s duty seems to imply the law is not clear on this point (or else he would have used stronger language).


  • 9
    Regan DuCasse says:

    You raised an important question, Rob. From what I understand, Brown and Schwartzeneggar were represented IN COURT defending Prop. 8. The state’s attorney lawyer, had MONTHS of ample time to gather their evidence, witnesses and strategy.
    Brown monitored the trial closely. And after all, as called by Prop. 8 supporters, no cameras or video observations were allowed. So transcripts were the most that could be done to follow the trial.

    As we all know, those there to represent Prop. 8 had no evidence, unqualified wits and the decision finally, was hardly made in haste. Judge Walker went through EVERY piece of the trial and it’s in print of 136 pages.

    The state’s reps, read it, I’m sure. And Brown and Schwartzeneggar can easily see that the state HAS NO CASE. Has no evidence with which TO appeal or defend the amendment.
    The courts earlier found that it was legally signed onto the ballot and voted on, but that it’s a law that drastically alters the purpose of the Constitution itself. Something that was proven in another earlier court.

    I think the operative words and importance here is: the state has nothing to defend the law WITH. So that’s why they aren’t going to.

    The PJI does in effect want a state with a huge deficit and little budget left for what comes down to a lawsuit the state can’t afford to put more money and time into.

    This is a LOSING proposition. And B and S know it.

  • 10
    GLENN S says:

    Law does not necessarily include common logic. From my point of view it would seem logical for the State to spend NO time or money on defending proposition 8 now that it is under review by the Federal Judicial System as potentially being in violation of the US Constitution, which would trump any defense that the State might attempt. If Prop 8 is ruled in violation of the US Constitution the State needs to take no further action. If Prop 8 is not ruled in violation of the US Constitution the State needs to take no further action. Who is driving this effort? The conservative coalition……….or the attorney’s who see an opportunity to make yet more money.?

  • 11
    Kevin says:

    From my quick look at some California cases, the Attorney General has discretion in deciding how far to go in defending a state statute, state agency, or state official because the AG also is supposed to represent the public interest. Thus, the AG is not required to defend state agencies or officials “if he believes them to be acting contrary to law, and he may withdraw from his statutorily imposed duty to act as their counsel,” People ex rel. Deukmejian v. Brown (1981), and the AG can concede that a statute is invalid, D’Amico v. Board of Medical Examiners (1974).

    A further legal wrinkle is the AG’s ability under Gov’t Code § 11040 to authorize a state agency or official to hire their own attorney, either because the AG doesn’t have the resources to represent the agency or official, or because the AG believes that the agency or official is acting contrary to law. But Prop 8 was an initiative–it didn’t come from the Legislature or any state agency or official, so there isn’t any state actor that the AG could authorize to hire private counsel to defend Prop 8 in court.

  • 12
    mikenola says:

    a few things to note about the section in question.

    “2512. The Attorney General shall attend the Supreme Court and prosecute or defend all causes to which the State, or any State officer is a party in his or her official capacity.”

    Reading of legal docs tends to be different that what regular people are used to.

    There is often a suit hinged on what the definition of “is” is.

    In this law, as it relates to this case, the word “shall” and the venue “supreme court” are going to be important.

    In archaic legal English, a document, law, or court order that uses the word ‘shall’ does so as a directive not an option. it is not “should”, “could”, “may”, “might” or “if they want to”.

    This is the what the haters want to try and employ in this case.

    The conflict comes in with the law including “Supreme Court” as the target venue. This is a definitive value, unlike if it read just “courts”.

    Any case has a specific trajectory and most, but not all, cases could end up in the State Supreme Court, which the CA constitution references.

    There is nothing in ANY state constitution that directs the states actors to push any case to the US Supreme Court.

    The conflict between directive and venue will, I believe, be one of the grounds the 9th rejects the petition from PJI.

    The state has already attended the case at the trial court level. The judge has decided that the Proposition violates Federal Constitutional rights.

    The AG and Gov have determined that the state of California will not pursue an appeal because of that decision.

    The Perry case is NOT in the State Supreme Court and can never reach it.

    A couple of things to note about the petition filed by PJI

    First it is on behalf of Joshua Beckley who as a “reverend” has been knee deep in the legal aspects against us and preaching in the streets to bay the damn gays. PJI fails as far as I can tell to identify him as anything other than a “concerned citizen” harmed by the ruling and being denied access to appeal because of the AG and Gov.

    Secondly is the claim in the PJI petition that Reagan never refused to uphold the law based on his personal preference or opinion. According the petition Meese makes this claim.

    Well Edge has a slightly different take on that here


    In short there is at least one time that Reagan refused to defend a law. It did happen before Meese was his lackey, and Meese is OLD. But that has not stopped Meese from making hay with the far right wing blogs and speaking engagements.

    All in all this is nothing more than a way to give their base “ammunition” against activist judges if and when the 9th decides the haters have no standing.

    Which brings up the real question each of us must answer.

    do you want the CA case over and done immediately? even if this means that only CA gets equal marriage? if so a ruling by the 9th of “no standing” will give you that.

    If you are willing to use this case, the best vehicle imaginable, to get a SCOTUS ruling giving equal rights to all Americans, then the standing issue should be avoided. This choice means you must be patient and vigilant as this case meanders through the courts.

    it means that in 2012 you would NOT support a Referendum to over turn Prop 8.

    It means that you are willing to accept that EVERY gay person will just have to wait and watch. Are you willing to do that? put your equality on hold for the good of everyone in the nation?

    Think about it.

  • 13
    Jason D says:

    That presumes that SCOTUS, would hear the case AND would rule in our favor, there is much skepticism that it would.

    It’s a gamble. We’ve already won, do we want to do double or nothing, or walk away from the table with our winnings?

    I agree it’s a strong case, but really, does the opposition have ANYTHING useful? They don’t have science or reality on their side. They have animus, fear, religion, and “gays are icky” none of which is particularly useful or helpful.

  • 14
    Matthew says:

    This is probably slightly off topic but I wonder why so many gay rights advocates are wary of the lawsuit recently filed in Wyoming. If the state of CA has “no case” because Walker repudiated all the evidence (and given that it is a federal case — walker’s ruling could apply to any state constitutional amendment banning same sex marriage), then what is to fear in the wyoming litigation? If Walker’s analysis applies to all 50 states, not just Prop 8, then another case from another state will be filed eventually and in a state like Wyoming, it probably will be appealed up the highest court in the land.

  • 15
    Ben in oakland says:

    The boys in wyoming are hardly ideal plaintiffs.

    They are representing themselves.

    Fill in the blanks: “A man who is is own _____ has a ____ for a client.

    Ad Jason– I’d settle for whatever i can get. If it is only california, it’s one more beachhead established. Meanwhile, while we’re waiting, maybe the two overweight buffoons on the Sc will have much needed heart attacks, not that i’m wishing bad stuff on anyone.

  • 16
    Jim Stone says:

    After what happened in California..I just do not understand why lawsuits aren’t popping up in all federal districts? With all of the money HRC and all of the other groups out there have…I don’t get it? Holy cow..use US somebody! We have been together for 19 years here in Ohio-no marriage-no civil unions-no recognition of marriage or civil unions from other states or other countries. This is thanks to our new “friend” Ken Mehlman..you know..the guy who contacted evangelicals to put this hate on our ballot in ’04. We are a bit older than Ken. I hope when he does enter a committed relationship he and his partner should be forced to move to Cleveland.. AND..if Ken is ever in the ICU at the Cleveland Clinic..I hope his nurse kicks his partner out because he is not “family!”

  • 17
    Jim Stone says:

    The Cleveland Clinic is actually progressive..I don’t think they would ever do that..BUT..other rural hospitals here would.

  • 18
    Jason D says:

    Matthew, Jim, the orgs are probably waiting for Perry to reach it’s conclusion.

    It takes a lot of money to argue any court case, especially one that will need to go through multiple appeals to get through the supreme court.

    If Perry ends up at SCOTUS and we win, all the time, money, and effort spent on the other cases will be a complete and substantial waste.

  • 19
    Kenny says:

    Can’t these people learn consistency? When the Wisconsin AG refused to defend domestic partnership law, the anti marriage equality people hailed him as a hero. When CA AG declines to defend a law, he’s a bad guy to these same anti-marriage equality folks.

    Of course the Wisconsin ballot initiative to ban same sex marriage was based completely on a lie. When the initiative began to sputter because folks didn’t want to take away health benefits for the domestic partners of state employees, the sponsors of the initiative said that would never happen. They were simply defining marriage. After the initiative passed, domestic partners of state employees lost their health benefits.

  • 20
    Rich says:

    Let me add another “thank you” to your long list. Your points re: the responses by anti-Prop 8 groups to the PJI filing are spot on.

    The same kind of rhetorical reversals are evident in nearly every aspect of public policy, it seems. “Wait, we lost? Foul.” “Hey, we won? You guys are whiners.”

    Why aren’t more people infuriated by this?

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