If Hard-Won Court Victory Against Prop 8 Is Tossed out, You Can Thank Jerry Brown

If I were Ted Olson, the former US solicitor general who is leading the legal battle against Prop 8, I would be unhappy with Jerry Brown right now.

Olson's hard-won victory before federal district court judge Vaughn Walker was meant to be the first stage of a legal strategy culminating in a US Supreme Court decision establishing -- for the entire country -- a constitutional right of gay marriage. But Judge Walker's decision striking down Prop 8 may never be considered by the federal court of appeals, much less the Supreme Court. Worse, the obstacle to appellate review could result in the voiding of Walker's decision altogether, thus restoring the gay marriage ban in California.

How does this scenario involve Jerry Brown? As California's Attorney General, Brown has the job of defending the state, and its laws, in court. Like a private lawyer representing a client, he is supposed to defend California whether or not he thinks the state's legal position is correct. This is so not only because the state deserves a defense, but also because our judicial system, in order to function, requires legal advocacy on behalf of both sides to a dispute. When a judge hears from one side only (the favored approach in countries that tend also to have only one political party), the judge is likely to make lots of mistakes.

With an eye on higher political office, Brown declined to defend Prop 8 in Judge Walker's courtroom. Instead, the defense of Prop 8 was left to a group of citizen activists involved in the Prop 8 electoral campaign. Brown's absence may have helped his own political fortunes, but, ironically, his strategy of non-participation ultimately may play into the hands of Prop 8's supporters.

Although the defenders of Prop 8, ably represented in Judge Walker's courtroom by conservative litigator Charles Cooper, put up a strong fight, they may lack legal "standing" -- a constitutional requirement in federal suits -- to appeal Judge Walker's decision to the federal court of appeals and, ultimately, to the US Supreme Court. Judge Walker highlighted this issue in a recent order, and the defendants, in their brief to the court of appeals, focused on it.

Without digging too deeply into the intricacies of the federal constitutional doctrine of standing, suffice it to say that the standing issue in the Prop 8 case is not trivial. Suffice it also to say that, if Jerry Brown had participated in the case and presented even a weak, half-hearted defense of Prop 8 at trial, standing would, at this juncture, pose no obstacle to appeal to the court of appeals and the Supreme Court.

But it gets worse. The problem is not limited to obtaining appellate review of Judge Walker's decision. If it turns out that the Prop 8 supporters lack standing to appeal, it may also be the case that they lacked standing to represent the state's interests in their defense of Prop 8 in the District Court. So says UC Davis Law School professor Vikram Amar, who is no friend of Prop 8, in an interview with Time magazine.

While I disagree with Amar on this point (because I think states should not have the power, through their absence, to veto federal constitutional challenges to state laws), these are, at best, unchartered legal waters. If it turns out that none of the parties before Judge Walker was a constitutionally adequate defendant, the judge's entire decision may fall -- which is to say, gay marriages in California would once again be illegal.

Although Jerry Brown is no doubt sincere in his view that Prop 8 violates the Constitution, his role as Attorney General is not to advocate his own personal views or to take positions that please his political base. Rather, his job is to defend California in all cases except where the state's actions are patently indefensible. (And while it may be terrible public policy, Prop 8 is unquestionably defensible under existing constitutional doctrine). This aspect of the attorney general job description may not be spelled out in any law. Nonetheless, it is necessary for the functioning of the judicial system.

Ted Olson's legal strategy is gay Californians' last best hope for judicial affirmation of their right to marry. Ironically, Jerry Brown's pursuit of short-term political advantage jeopardizes that strategy.


Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition. The views expressed in this column are Scheer's own, and are not necessarily shared by FAC's Board of Directors.