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Schwarzenegger, California AG Can Stay Out of Prop. 8 Fight: State Supreme Court
LifeSiteNews.com ^ | September 10, 2010 | By Peter J. Smith

Posted on 09/10/2010 3:05:13 PM PDT by topher

Friday September 10, 2010


Schwarzenegger, California AG Can Stay Out of Prop. 8 Fight: State Supreme Court

By Peter J. Smith

SAN FRANCISCO, September 10, 2010 (LifeSiteNews.com) – The California Supreme Court has turned down a request from attorneys to mandate that California’s governor and attorney general represent the state in the federal legal battle over Proposition 8.

Late Thursday, the California Supreme Court denied a petition filed by Pacific Justice Institute to require Governor Schwarzenegger and Attorney General Jerry Brown to defend Prop. 8. In August, Chief U.S. District Court Judge Vaughn Walker in San Francisco decided to overturn Proposition 8, the voter-approved state constitutional amendment defining marriage as between one man and one woman, on the basis that it violated the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution.

However, pro-family advocates are concerned that without the governor or attorney general representing the state, proponents of California’s constitutional amendment will lack standing at the federal appeals court to defend the law. Although named as litigants in the case, Perry v. Schwarzenegger, both Schwarzenegger and Brown declined to defend Prop. 8 in federal court, and instead left the defense up to the amendment’s original sponsors, ProtectMarriage.com.

Lawyers with Pacific Justice Institute were hoping to head off the possibility that the 9th U.S. Circuit Court of Appeals might rule the interveners in the case, attorneys for ProtectMarriage, have no right to appeal under Article III if the U.S. Constitution, because they are not the named defendants in the case.

However, the state’s high court dismissed the Institute’s petition in two sentences, without offering a legal explanation, affirming the same decision handed down by a lower appeals court almost a week before.

On Wednesday, both the Governor and Attorney General had filed separate briefs to the court defending their decision not to defend the law.  The governor’s legal counsel Andrew Stroud told the state Supreme Court that Gov. Schwartzenegger, "like any litigant, has complete discretion over his own litigation strategy, including whether or not to appeal an order."

However lawyers for PJI rejected that analogy, saying that California’s constitution required its executive officers to defend the state’s laws “without mental reservation.”

“The refusal of the Governor and Attorney general to defend Prop. 8 is not a legal strategy, it is an abdication of their duties as the legal representatives of the People of California,” asserted PJI president Brad Dacus. “They do not get to pick and choose which laws they will defend.”

PCJ legal counsel Kevin Snider in an op-ed argued that allowing the governor and the attorney general to decline to defend the laws of the state puts California’s Republican government on the brink of a constitutional crisis.

“The duty to defend peacefully enacted laws is at its zenith when the voters have amended their own constitution,” wrote Snider. “Should these elected members of the executive branch refuse to defend a constitutional amendment enacted in this manner, the Governor and the Attorney General will have seized an extraconstitutional power by creating what is tantamount to a constructive veto.”

“Whether or not the citizens of California realize it, the social contract that the people have made to govern themselves with is being breached. We are witnessing what is essentially a coup,” continued Snider.

The 9th Circuit Court has expedited review of Proposition 8, and a hearing is set for the week of December 6 in San Francisco. In the interim, the court has placed an injunction on Judge Walker’s order for same-sex “marriages” to commence in California.

Attorneys for ProtectMarriage.com are required by the federal appeals court to defend their right to intervene in the case under Article III.

The issue of standing may be resolved by the California November election if the incoming attorney general and governor are willing to defend Prop. 8.; but they would onlyhtake office in January and the case may be dismissed at that point. 

If the current interveners are determined by the court not to have standing, then same-sex “marriage” would be legal in California, and the issue would not go to the U.S. Supreme Court. Should it be accepted by the Supreme Court, the Court’s swing justice, Anthony Kennedy, would likely be the deciding vote on whether to uphold the ban or create a national right to same-sex “marriage."


Read Kevin Snider’s op-ed “The Looming Constitutional Crisis”

Read National Review “The Case for Marriage” 


Read previous and related coverage by LifeSiteNews.com:

Federal Appeals Court Intervenes in Prop. 8, Halts California Gay 'Marriages'
http://www.lifesitenews.com/ldn/2010/aug/10081605.html

Expert: Prop 8 Trial Based on False or Dubious Statements about Homosexuality
http://www.lifesitenews.com/ldn/2010/aug/10081803.html

ADF & Liberty Counsel at Odds over Prop. 8 Trial
http://www.lifesitenews.com/ldn/2010/aug/10081711.html

San Francisco Chronicle: “Open Secret” That Prop. 8 Judge is “Gay”
http://www.lifesitenews.com/ldn/2010/feb/10020909.html

URL: http://www.lifesitenews.com/ldn/2010/sep/10091008.html


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TOPICS: Culture/Society; Extended News; Front Page News; News/Current Events; US: California
KEYWORDS: bostonglobe; homosexual; homosexualagenda; margaretmarshall; mediamanipulation; moonbeam; newyorktimes; prop8; rino; rino4nytagenda; romney; romneymarriage; samesexmarriage; schwarzenegger; southafricarules; union
Once a RINO, always a RINO...
1 posted on 09/10/2010 3:05:17 PM PDT by topher
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To: topher
it was passed and the stooopid POS signed it...!!! how can they NOT have to defend it???
2 posted on 09/10/2010 3:10:02 PM PDT by Chode (American Hedonist *DTOM* -ww- NO Pity for the LAZY)
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To: topher
Didn't Arnold run on the premise that he would respect the will of the people as regards marriage?

I'm soooo confused.

3 posted on 09/10/2010 3:11:37 PM PDT by Carry_Okie (The RINOcrat Party is still in charge. There has never been a conservative American government.)
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To: topher

The left has demonstrated pure power and firm control. The coalition is consolidating its grip on governance. The healthy portion of our society is disorganized and leaderless. One perverted judge and one actor playing governor can thwart the valid expression of the peoples rational will.


4 posted on 09/10/2010 3:18:12 PM PDT by AEMILIUS PAULUS (It is a shame that when these people give a riot)
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To: topher
“Whether or not the citizens of California realize it, the social contract that the people have made to govern themselves with is being breached. We are witnessing what is essentially a coup,” continued Snider.

A coup, indeed! Governor Ahnold's regime is like a Latin American junta.

I doubt that he's even a natural born citizen.

5 posted on 09/10/2010 3:35:15 PM PDT by Walts Ice Pick
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To: topher

Girlie man supports same sex marriage. Who knew?


6 posted on 09/10/2010 3:41:16 PM PDT by Enterprise (As a disaster unfolds, a putz putts.)
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To: topher

We need a new proposition that says that when the people pass a proposition, if it is challenged in court, anyone who sponsored the proposition or who voted for it has standing to appear in court to defend it. The big flaw in the proposition process is that when we pass them over the objections of the professional politicians, we somehow expect them to defend the challenges to them. That’s how we lost Prop 187, and now look at this state.


7 posted on 09/10/2010 3:51:22 PM PDT by Defiant (Liberals care more about the Koran than they did about Terri Schiavo.)
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To: topher; 185JHP; AFA-Michigan; Abathar; Agitate; Albion Wilde; AliVeritas; Antoninus; Aquinasfan; ...
Homosexual Agenda Ping

Freepmail wagglebee to subscribe or unsubscribe from the homosexual agenda ping list.

Be sure to click the FreeRepublic homosexual agenda keyword search link for a list of all related articles. We don't ping you to all related articles so be sure to click the previous link to see the latest articles.

Add keywords homosexual agenda to flag FR articles to this ping list.

Some news on Prop 8. Governor Schwarzenegger and Attorney General Jerry Brown will not defend it. They have decided to leave ProtectMarriage.com to defend it alone.

8 posted on 09/10/2010 4:02:01 PM PDT by DJ MacWoW (If Bam is the answer, the question was stupid.)
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To: topher

cowards and wimps


9 posted on 09/10/2010 4:48:21 PM PDT by NormsRevenge (Semper Fi ... Godspeed .. Monthly Donor Onboard .. Obama: Epic Fail or Bust!!!)
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To: DJ MacWoW

I’m sick to death of these idiots appeasing muslims, homosexuals etc I’m also pissed off that people see an R and vote with out much thought to the consequences of their vote.


10 posted on 09/10/2010 5:10:31 PM PDT by manc (WILL OBAMA EVER GO TO CHURCH ON A SUNDAY OR WILL HE LET THE MEDIA/LEFT BE FOOLED FOR EVER)
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To: NormsRevenge

indeed and it is not only officials but it seems many talk show hosts like Hannity too.

time for them to either get a backbone or piss off


11 posted on 09/10/2010 5:12:40 PM PDT by manc (WILL OBAMA EVER GO TO CHURCH ON A SUNDAY OR WILL HE LET THE MEDIA/LEFT BE FOOLED FOR EVER)
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To: manc

Me too. My primary is this Tuesday so I’ll be spending the weekend doing research before I vote.


12 posted on 09/10/2010 5:21:26 PM PDT by DJ MacWoW (If Bam is the answer, the question was stupid.)
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To: DJ MacWoW

Good to hear but comes as no surprise that people like you would do research it is the ignorant folks I can’t stand


13 posted on 09/10/2010 5:30:22 PM PDT by manc (WILL OBAMA EVER GO TO CHURCH ON A SUNDAY OR WILL HE LET THE MEDIA/LEFT BE FOOLED FOR EVER)
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To: manc

Oh I didn’t take what you said the wrong way. You know, how hard is it to look up some info on candidates? My grandparents used to check out people before they voted. So many now vote by emotion.


14 posted on 09/10/2010 5:41:00 PM PDT by DJ MacWoW (If Bam is the answer, the question was stupid.)
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To: DJ MacWoW

took me two days to find info on all the candidates and a couple I couldn’t even find.
Even the judges I took the time to find the info on them.
In this day and age judges seem to having a great power so it is so important to get the right one on the bench.


15 posted on 09/10/2010 5:43:23 PM PDT by manc (WILL OBAMA EVER GO TO CHURCH ON A SUNDAY OR WILL HE LET THE MEDIA/LEFT BE FOOLED FOR EVER)
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To: manc

We call our local paper the communist rag so I’ll have to find info and even who’s running elsewhere. Tuesday they’ll list all the candidates. I want info before Tuesday.


16 posted on 09/10/2010 5:48:17 PM PDT by DJ MacWoW (If Bam is the answer, the question was stupid.)
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To: topher
On Wednesday, both the Governor and Attorney General had filed separate briefs to the court defending their decision not to defend the law...

“The refusal of the Governor and Attorney general to defend Prop. 8 is not a legal strategy, it is an abdication of their duties as the legal representatives of the People of California,” asserted PJI president Brad Dacus.

“They do not get to pick and choose which laws they will defend.”

What a bunch of girly-men.

17 posted on 09/10/2010 6:01:00 PM PDT by ROCKLOBSTER (Celebrate: Republicans freed the slaves Month.)
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To: AdmSmith; Arthur Wildfire! March; Berosus; bigheadfred; blueyon; Convert from ECUSA; dervish; ...
Thanks topher.
18 posted on 09/10/2010 6:10:57 PM PDT by SunkenCiv (Democratic Underground... matters are worse, as their latest fund drive has come up short...)
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To: manc

>I’m also pissed off that people see an R and vote with out much thought to the consequences of their vote.<

We have two of the worst RINO’s you could imagine running for governor and lt governor here in Massachusetts.....

Charlie Baker & Richard Tisei: a pro-family nightmare
Mass. Republican candidates for Governor and Lt. Governor would be liberal Democrats anywhere else.
http://www.massresistance.org/docs/govt10/election10/baker_tisei/index.html

GOP Candidate for Governor Charlie Baker marches with hateful anti-family homosexual activist leaders in Gay Pride parade.
http://www.massresistance.org/docs/gen/10c/pride_week/baker.html

Mass. GOP Lt. Governor candidate Tisei gives interview to homosexual magazine — pushing gay agenda
Talks about pushing for Transgender Rights Bill, fighting the marriage amendment, and more.
http://www.massresistance.org/docs/govt10/election10/tisei_spirit_mag/index.html

That’s why I’ll be writing in Scott Lively and Keith Davis
on Tuesday!

Scott Lively: Write-in for Governor.
http://www.massresistance.org/docs/govt10/election10/gov_writein_race/lively_0812.html

Keith Davis - write-in candidate for Lt. Governor
http://www.massresistance.org/docs/govt10/election10/gov_writein_race/davis_0804.html

They need 10,000 write-in votes in the primary to appear on the November ballot.


19 posted on 09/10/2010 6:48:58 PM PDT by massmike (...So this is what happens when OJ's jury elects the president....)
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To: Walts Ice Pick
I doubt that he's even a natural born citizen.

He is a naturalized citizen,...but not a Natural born Citizen...He was born in Austria to non - US Citizens.

20 posted on 09/10/2010 6:55:38 PM PDT by Ernest_at_the_Beach ( Support Geert Wilders)
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To: Defiant
We need a new proposition that says that when the people pass a proposition, if it is challenged in court, anyone who sponsored the proposition or who voted for it has standing to appear in court to defend it.

No State Law, however it is passed, has the slightest effect on the Federal Supreme Court.
Unfortunately, the legal arbiter of who has or does not have standing before the US Supreme Court is --- the U.S. Supreme Court; or possibly the U.S. Congress.

21 posted on 09/10/2010 8:20:42 PM PDT by Publius6961 ("In 1964 the War on Poverty Began --- Poverty won.")
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To: DJ MacWoW
Ridiculous. Following the constitution is no longer constitutional I guess.
22 posted on 09/10/2010 8:35:00 PM PDT by gidget7 ("When a man assumes a public trust, he should consider himself as public property." Thomas Jefferson)
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To: AEMILIUS PAULUS

What explains the left in this country right now is “Absolute power corrupts absolutely”


23 posted on 09/10/2010 8:36:40 PM PDT by gidget7 ("When a man assumes a public trust, he should consider himself as public property." Thomas Jefferson)
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To: manc
There is so much Bullshit in politics these days, that candidstes not only can, but do say anything to get elected. What they do after being elected is more often than not the opposite of what they seemed to promise (hope and change).

I've found the best indicator on how to vote is by identifying the individuals and groups who oppose certain candidates or propositions.

Since Alice in Wonderland politics kicked in, in 2007, that technique has not failed me.

24 posted on 09/10/2010 8:37:42 PM PDT by Publius6961 ("In 1964 the War on Poverty Began --- Poverty won.")
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To: gidget7

Apparently one doesn’t have to listen to the will of the people either.


25 posted on 09/10/2010 8:40:30 PM PDT by DJ MacWoW (If Bam is the answer, the question was stupid.)
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To: massmike

I will be doing the same massmike. You betcha!


26 posted on 09/10/2010 8:40:45 PM PDT by gidget7 ("When a man assumes a public trust, he should consider himself as public property." Thomas Jefferson)
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To: DJ MacWoW

Apparently not. Prop 8 was done to the letter in the state constitution. It is therefore unconstitutional to NOT abide by the vote. But apparently that no longer matters.


27 posted on 09/10/2010 8:43:41 PM PDT by gidget7 ("When a man assumes a public trust, he should consider himself as public property." Thomas Jefferson)
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To: Publius6961

The state law, if drafted as I suggested, could give standing to people who will defend it properly to appear in federal court as parties in interest. The court can determine standing, but when the state law gives a substantive right to someone, that will provide them standing, just as a state law that gives the attorney general responsibility to pursue cases involving the state gives him standing.


28 posted on 09/10/2010 9:13:53 PM PDT by Defiant (Liberals care more about the Koran than they did about Terri Schiavo.)
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Comment #29 Removed by Moderator

To: massmike

here’s a question for everyone.

This judge says the don’t ask violates the 1st and 5th amendments.
Now having read them numerous times how the hell could this judge have come to that decision, hell how could the judge have even said that.?

Has this judge even read those amendments, hell has any jjdge in CA ever read the constitution.?


30 posted on 09/11/2010 6:49:46 AM PDT by manc (WILL OBAMA EVER GO TO CHURCH ON A SUNDAY OR WILL HE LET THE MEDIA/LEFT BE FOOLED FOR EVER)
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