What November election means for Prop. 8

The statewide elections in November will have voters sorting through candidates’ stances on many weighty topics, but one viewpoint may hold an important role in a future legal fight: Their position on Proposition 8.

The statewide measure that voters approved to define marriage as between a man and a woman was found to be unconstitutional by a federal judge, setting up a legal fight that could end up in the U.S. Supreme Court.

Last week, California’s highest court ruled that Gov. Arnold Schwarzenegger, a Republican,  and state Attorney General Jerry Brown, a Democrat, don’t have to defend Prop. 8 in federal court. Both had filed paperwork with the court saying that public officials have the authority to select what cases they defend in court.

Conservative and religious groups that sponsored the measure, which was approved by 52 percent of California voters in November 2008, have appealed the decision by Chief U.S. District Judge Vaughn Walker to rule it unconstitutional to the 9th U.S. Circuit Court of Appeals. Doubts, however, remain about whether the coalition, which was not named in the lawsuit, has the authority to appeal as ordinary citizens since they are not responsible for enforcing marriage laws.

With the doubt about the appeals process, many eyes have turned to two Republicans on the ticket for statewide offices: Meg Whitman, who’s running for governor, and Steve Cooley, who’s running for attorney general. Both have said they support Prop. 8.

Despite their support of the measure, legal experts say it may be too late for either Whitman or Cooley to jump into the appeals process, if elected.

The 9th Circuit has said that the Prop. 8 appeal is one of the issues it will take up when it hears oral arguments in December, which comes after Election Day.

But even if the appeals court does not make a decision before the inauguration in January, it will still be far too late for the state to finally jump into the appeal, according to legal procedure expert Richard Marcus of UC Hastings College of the Law.

And if the 9th Circuit’s decision is appealed to the U.S. Supreme Court, it will still be too late for Whitman or Cooley to participate, Marcus said.

“The train will have left the station by then,” he said.

He noted an example in which a case was decided against seven plaintiffs, five of whom decided to appeal, and two did not. It was not clear whether they had standing to appeal, but after a higher court decided they could, the last two tried to jump onto the appeal. The court ruled that the two had to stick with their initial decision not to appeal.

The exception that could allow Whitman or Cooley to have a say in the future of Prop. 8 is if the 9th Circuit or U.S. Supreme Court vacates Walker’s decision, or somehow requires him to rehear part or all of the trial. In that case, the state would likely have the option to step back into the process.

One wrinkle that could arise in the future, though, about appeals is if either Whitman or Cooley were elected — but not both, said constitutional law expert Calvin Massey of UC Hastings.

“Let’s speculate a little bit and assume Meg Whitman and [Democratic attorney general candidate] Kamala Harris are elected. Then you have a contest of wills,” said Massey.

If the reverse happens — Democratic gubernatorial candidate Jerry Brown and Cooley are elected — Brown could have a not-so-pleasant flashback to his first round as governor in the 1970s, Marcus said. At that time, Republican Evelle Younger was attorney general and he often clashed with Brown.

“It was a prickly relationship,” Marcus said.

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