Schwarzenegger decides against defending Prop. 8 in federal court

Gov. Arnold Schwarzenegger has declined to defend the constitutionality of Proposition 8, telling a San Francisco judge that the legality of the anti-gay marriage measure is for the courts to decide.

The governor’s decision to remain neutral in a federal challenge to Proposition 8 means no statewide official will be defending the measure in federal court.

Proposition 8 resurrected a ban on same-sex marriage, receiving 52% of the vote in the November election. The California Supreme Court ruled 6-1 last month that the measure did not violate the state constitution.

Supporters of the measure said Wednesday they were disappointed but not surprised by the governor’s stance.

Ron Prentice, chairman of the Coalition, said the group was “fairly consistently disappointed with the governor’s response to the will of the people in the case of marriage.”


In declining to take sides in the suit, Schwarzenegger said the case “presents important constitutional questions that require and warrant judicial determination.”

“In a constitutional democracy, it is the role of the courts to determine and resolve such questions. . . . ,” the governor said late Tuesday in his legal reply to the suit. “The Administration encourages the Court to resolve the merits of this action expeditiously.”

Two same-sex couples who were denied marriage licenses as a result of Proposition 8 filed the challenge in federal district court in San Francisco. The suit charges that Proposition 8 violated federal due process and equal protection guarantees, issues that were not raised before the California Supreme Court.

California Atty. Gen. Jerry Brown, going farther than Schwarzenegger, said in his legal response to the suit last week that Proposition 8 violates the U.S. Constitution.

The positions of the governor and the state’s top law enforcement officer may leave the defense of Proposition 8 to its campaign proponents, who have asked the court to intervene. U.S. District Court Judge Vaughn R. Walker will consider that request and another to suspend the law pending a trial at a July 2 hearing.

The American Foundation for Equal Rights, a group formed by a Los Angeles-based political strategist to launch the lawsuit, praised the governor’s action.

The “filing by Gov. Schwarzenegger bolsters our call for a swift end to the constitutionally intolerable situation created by Proposition 8,” said Chad Griffin, the strategist who started the group.