Brown and Schwarzenegger don’t have to defend Prop. 8 -- but they should

Capitol Journal

The will of the California electorate is being undermined by Atty. Gen. Jerry Brown and Gov. Arnold Schwarzenegger.

The voters’ rights are being denied.

Gubernatorial candidate Meg Whitman struck a blow for good government — maybe even scored a political point or two — at a Republican state convention last weekend when she announced that, if elected, she’ll defend Proposition 8 in the courts.

Brown and Schwarzenegger both have refused to defend the ballot measure that bans same-sex marriage.

But Whitman’s low-key pronouncement, in answer to a reporter’s question, may be moot by the time the next governor takes office.

There’s a legal question whether, in the federal court system, a lower court ruling that declared Prop. 8 unconstitutional can be appealed by its campaign sponsors — its sole defenders so far — or must be shepherded by the state, meaning the governor or attorney general. There’ll be a court hearing on the issue the week of Dec. 6 and the next governor doesn’t take over until Jan. 3.

Moot or not — and regardless of Prop. 8’s merits — there’s a principle at stake here. The pertinent issue is whether voters should be hung out to dry and ignored by the state after they pass a ballot measure.

This isn’t the same as courts thwarting the people’s will. Many Prop. 8 supporters whine annoyingly that when a court throws out a measure passed by the voters, it is an affront to democracy. Nonsense. It’s central to democracy.

Voters and legislatures sometimes pass laws that are unconstitutional. Courts were created, in part, to weed out those flawed acts.

Brown initially pledged to defend Prop. 8 after it passed with 52% of the vote in November 2008.

For the record, I voted against Prop. 8 and still don’t like it. But I think the will of the majority should be supported by the state.

Brown soon reneged on his pledge, asserting that the ban on same-sex marriage extinguishes “fundamental constitutional rights.”

Says Brown spokesman Sterling Clifford: “If the voters pass something that the state’s lawyer thinks is unconstitutional, then it would be irresponsible for him to invest time and energy and resources on what ultimately is a losing battle.”

But whether a law is unconstitutional is a court’s job to decide. The attorney general’s job is to defend and enforce state laws. People didn’t elect him chief judge. They elected him chief law officer.

Same with the governor. He can appoint judges. But he can’t become one unless he resigns his office.

Schwarzenegger has been on both sides of this issue. He vetoed bills in 2005 and 2007 to allow same-sex marriage, declaring that voters had spoken in 2000 when they passed an initiative to ban homosexual matrimony. He asserted that the initiative, Prop. 22, couldn’t be repealed by the Legislature.

Ultimately, the California Supreme Court ruled that Prop. 22 violated the state Constitution. Then Prop. 8 amended the Constitution to restore the ban.

Now the governor is arguing that gays and lesbians should be allowed to marry immediately, even before Prop. 8 runs its course in the courts — if, indeed, there’s any running room left with both Schwarzenegger and Brown refusing to defend the measure.

For Brown, his bailing on Prop. 8 raises a question about whether, if he’s elected governor, there might be some laws that he wouldn’t enforce, such as the death penalty.

Brown has been a life-long death penalty opponent. As attorney general he elevated a staunch defender of capital punishment to head the office’s criminal division, easing prosecutors’ anxiety.

But as governor, he would have the last word on executions.

Brown never faced such a life-or-death decision as governor in the 1970s. But he did veto a bill to reinstate capital punishment, and was overridden by the Legislature.

Spokesman Clifford says Brown would enforce the death penalty “in accordance with the law.”

But there seems to be a contradiction: Brown will enforce one law he opposes, but not defend another. Is it his prerogative to pick and choose?

Well, yes, a governor or attorney general may refuse to defend a ballot measure. But it’s very rare. The normal procedure then is to authorize an independent counsel to represent the state and electorate. That didn’t happen with Prop. 8.

I called Andy Pugno, chief counsel for the Prop. 8 supporters, who have carried the defense burden themselves. It has cost them “several million,” he says.

“It’s the constitutional duty of the governor and attorney general to defend voter-passed laws,” he says. “But there’s a second dimension to this: It really threatens the integrity of the initiative process because the initiative is designed to circumvent government leaders.”

I also conferred with veteran political attorney Steve Merksamer, who isn’t involved in either the governor’s race or Prop. 8. He was a top deputy to two attorneys general and chief of staff to Gov. George Deukmejian.

“The people have a right to be defended,” Merksamer says. “The governor and attorney general have the duty to defend any law. It has nothing to do with whether they agree with the law or not….

“You’ve got to have vigorous representation on both sides. If you don’t, the public will never have confidence in the ultimate [court] decision.”

Democracy involves an electorate and three branches of government, each with separate, distinct roles. It works best when one institution doesn’t confuse its role with another’s — such as an executive playing judge.