Arnold Schwarzenegger and Jerry Brown are both urging Judge Walker to end his stay on his ruling overturning Prop 8.
In an extraordinary court filing, Gov. Arnold Schwarzenegger asked Friday that gay marriages be allowed to resume immediately in California after a federal ruling that the state’s voter-approved ban on gay marriage is unconstitutional.
The Republican governor filed his brief with U.S. District Court Judge Vaughn R. Walker before a Friday deadline to submit arguments on whether to continue a stay of Walker’s decision against Proposition 8. “The Administration believes the public interest is best served by permitting the Court’s judgment to go into effect, thereby restoring the right of same-sex couples to marry in California,” wrote Kenneth C. Mennemeier, an attorney representing Schwarzenegger, in the brief. “Doing so is consistent with California’s long history of treating all people and their relationships with equal dignity and respect.”
Walker concluded in a decision Wednesday that Proposition 8 violates the equal protection and due process rights of gays and lesbians. The initiative passed with 52 percent of the vote in November 2008.
As governor, Schwarzenegger is named as a defendant in the case, although he remained neutral in the lawsuit challenging Proposition 8. The governor was against the initiative when it was on the ballot and chose not to defend the constitutional amendment in court. He filed his brief Friday in his role as a named defendant and on behalf of two other administration officials.
The Schwarzenegger administration contended in the brief that there is no governmental or public interest in continuing a ban on gay marriage after Walker’s decision.” Instead, the administration said that allowing such marriages to resume would further the state’s interest in recognizing the rights of gays and lesbians. It also said that there would be no administrative burden for the state to issue marriage licenses to gay and lesbian couples. California issued 18,000 such licenses before passage of Proposition 8.
Schwarzenegger applauded Walker’s decision earlier this week. “For the hundreds of thousands of Californians in gay and lesbian households who are managing their day-to-day lives, this decision affirms the full legal protections and safeguards I believe everyone deserves,” the governor said in a statement Wednesday.
California Attorney General Jerry Brown, a Democrat, filed a similar motion. Brown had argued that Proposition 8 was unconstitutional when the measure went before the California Supreme Court last year.
This is indeed extraordinary. Schwarzenegger is the representative of the people of California, a majority of whom voted to amend their constitution to reserve marriage to opposite sex couples. So, it’s rather absurd to argue that “there is no public interest” in upholding their decision. Indeed, it’s his duty to stand up for their wishes here until the appeals have been exhausted.
Now, Schwarzenegger is sworn to “support and defend the Constitution of the United States and the Constitution of the State of California,” so one could argue that this is a higher duty if he feels strongly that the amendment violates the U.S. Constitution (by definition, it can’t violate California’s Constitution, since it’s an amendment to it). But, if he thinks that, he should have joined the suit on the other side rather than remaining neutral.
Beyond that, there’s real harm in starting up same-sex marriages again when there’s a decent chance that Walker’s ruling will be overturned. Not only will the will of the voters have been circumvented but more people will be in the bizarre circumstance of having been married and later having those marriages either canceled out or otherwise in limbo.
Regardless of how it plays out in court, California will have gay marriage within the next decade. That’s where the national attitudes are trending and California is blazing the trail. Prop 8 passed narrowly (52-48). But it should play out either through the political process or through the exhaustion of the judicial process, not on the whims of a lower court judge.
Update (Doug Mataconis): Perhaps even more extraordinary than the position Schwarzenegger has taken on the stay is the fact that California’s Attorney General, Jerry Brown, has filed an application with the Court asking that Judge Walker lift the stay on his ruling and allow gay marriages to proceed in California. First of all he’s the Attorney General of California and it’s ordinarily his job to defend state laws in Court, although in this case the task of defending Prop 8 fell to outside attorneys. Second, Brown is a candidate for Governor and he’s essentially taking a position that’s opposed by at least half of his state’s residents. The politics of this are getting very interesting to say the least.
