NCLR’s Chris Stoll and Shannon Minter respond to LA Times editorial in favor of a defense for Prop 8
September 12, 2011
Please welcome Chris and Shannon from the National Center for Lesbian Rights back to Prop8TrialTracker.com for a guest piece on today’s Los Angeles Times editorial in favor of ensuring Prop 8 has a defense. Chris serves as Senior Staff Attorney and Shannon as Legal Director -Adam
By Chris Stoll and Shannon Minter
The LA Times really got this one wrong. The editors argue that the Governor and Attorney General should be forced to hire a private attorney to defend Prop 8 on appeal. The Times says that to do otherwise would allow state officers to usurp the courts’ role in determining whether the initiative is unconstitutional.
But Prop 8 has already had its day in court. It lost — and not because there weren’t any lawyers to defend it. Despite hiring a large team of experienced lawyers and putting on the best case they were able to muster, the supporters of Prop 8 were unable to present any good reasons to uphold it. After giving the proponents ample opportunity to defend Prop 8 and carefully considering their arguments, Judge Walker issued a carefully reasoned decision overturning the measure.
So it is the courts — and not state officials — that have declared Prop 8 unconstitutional. The only question now is whether state officers should be required to appeal that decision to a higher court. But the decision to appeal has always been left to the discretion of the responsible state officers. Appeals are not automatic. There are many reasons why government lawyers can and do choose not to appeal. For example in 1997, Governor Gray Davis entered into a settlement instead of appealing a decision striking down Proposition 187, a ballot initiative that would have prevented undocumented immigrants from accessing health care and other public services in California. In 1967, the California Attorney General not only refused to defend, but asked the United States Supreme Court to overturn, a ballot initiative that amended the California Constitution to allow real estate owners to discriminate on the basis of race in selling or renting their property. In each of these cases, state officials decided that other considerations outweighed the “will of the people” as supposedly expressed in a recently-enacted initiative. Prop 8 should be no different.
The Times seems to be arguing for a requirement that the Governor and Attorney General must appeal all decisions overturning any ballot initiative to the highest court in the land. But that has never been the law in California, and there is nothing about Prop 8 that should require the responsible officials to abandon the discretion they have always exercised in deciding whether an appeal is in the state’s best interest. We elect state officers to make these kinds of decisions, and they are responsible to the voters for the decisions they make. We should let them do their jobs.