This post is about the rule of law, not same sex marriage. When California voters passed Proposition 8, which defines marriage in the California constitution as exclusively heterosexual, some gay couples sued to have it declared unconstitutional. They won in the trial court and court of appeals, and now the case is to be argued in the Supreme Court of the United States.
Normally, in such cases, the California attorney general and/or governor would defend the amendment in the federal courts. But Jerry Brown, both as attorney general and governor, simply refused. So has the current (very left wing) attorney general–soon to be a national figure, I predict — Kamala Harris. The abdication of Brown and Harris in doing what should be their duty, left no one to defend an amendment that the people of California had enacted!
The California Supreme Court and the Ninth Circuit Court of Appeals both permitted a private group to step in and defend the law, since state officials wouldn’t. Otherwise, the case would be lost be default. But Harris — filing an amicus brief, since the state has refused to defend the law — claims that the appeal to the Supremes should not be permitted. From the San Francisco Chronicle story:
The state Supreme Court then said Prop. 8′s sponsors could step in and represent the state’s interests in defending a law passed by the voters. A federal appeals court accepted that recommendation before issuing its own ruling overturning Prop. 8. But Harris, taking up an issue that the Supreme Court asked lawyers to address, argued Wednesday that the appeal should be dismissed because Protect Marriage has no legal rights at stake in the case. ”They are private citizens with no political accountability,” no authority to enforce state law, and no harm they can foresee to themselves or anyone else if gays and lesbians are allowed to marry, the attorney general said.
In other words, when the politically “accountable” state officials, who should defend state law, just refuse — apparently no one else can either.
The effect of Harris’s argument, were it to prevail, would be to grant state officials a veto over laws and amendments enacted by voters with which they disagree, by simply abandoning it should anyone sue to have it invalidated. That would shatter the rule of law as we know it. What a disgraceful episode in general and an argument that’s dangerous to liberty in particular.