Yesterday I wrote on how Gov. Jerry Brown, while State Attorney General, failed to uphold his oath to support and defend the State Constitution. The California State Constitution was amended by popular initiative [Prop. 8] to define “marriage” exclusively to be between one man with one woman. Brown refused to appeal a U.S. District Court Judge’s ruling that Proposition 8 was unconstitutional. The sponsors of Proposition 8 stepped into the gap, and filed the appeal. The gay couple winning the case in the District Court challenged the sponsors “standing” to bring the appeal, stating that only an elected State Office [i.e., the A.G.] had standing to appeal.
The questioning from the Bench during oral arguments yesterday (09-06-11) indicates that the justices felt much as I did concerning the integrity and purpose of the initiative process. Even the two recent Supreme Court appointees [Chief Justice Cantil-Sakauye and Justice Liu] of now Governor Jerry Brown noted that the spirit and purpose of the initiative process would be rendered meaningless if left to the discretion of public officials who disagreed with the outcome of the initiative process. I believe that the questioning implied an underlying attitude by the Justices that former State Attorney General Jerry Brown let his personal brand of politics take precedence over the duties of his elected office. Here are some sample questions:
“Doesn’t that make the initiative process illusory?” by the Chief Justice.
Doesn’t the decision not to appeal by the executive branch give state officials a “pocket veto” over the will of the people? by Justice Carol A. Corrigan.
“The attorney general and the governor get to pick the laws they want to enforce?” by Justice Ming W. Chin.
“Without a proper and rigorous defense, the courts aren’t in a position to hear all points of view . . . Isn’t that unfair to the court?” by Justice Joyce L. Kennard.
The bottom line: The Court will take Jerry Brown to the wood shed, and expose his brazen dereliction of duties. That said, the issue will simply be fully appealed and briefed to the generally liberal Ninth Circuit, which is likely to uphold the ruling of the District Court. The issue will ultimately be decided by the U.S. Supreme Court. I predict that the Court will be unwilling to divest the states of their traditional role in defining the status of marriage, and will not apply of rule of “strict scrutiny” to the validity of those laws. The vote once again, however, will be split along ideological lines, and I predict another 5-4 decision unless President Obama is accorded another appointment to the Bench.