Prop. 8 Judges Chide Schwarzenegger, Brown for Not Defending Law

prop. 8, gay marriage, California
Senior Circuit Judge Michael Daly Hawkins, left, Circuit Judge Stephen R. Reinhardt, center, and Circuit Judge N. Randy Smith hear arguments during a hearing in the Ninth Circuit Court of Appeals, Monday, Dec. 6, 2010, in San Francisco. AP Photo/Eric Risberg

The high-profile Proposition 8 court case on the subject of gay marriage went before a federal appeals court today, where some of the nation's top lawyers argued over the constitutionality of gay marriage, the nature of marriage itself, state rights, and a number of other fundamental legal questions.

Before making those arguments, however, the attorneys debated whether the parties defending Prop. 8, California's gay marriage ban, even have standing in court. The three-judge subpanel of the Ninth Circuit Court of Appeals chided California Gov. Arnold Schwarzenegger and state Attorney General (and Governor-elect) Jerry Brown for not helping those interested in defending Prop. 8.

Today's appeals case comes after a federal judge in August overturned California's gay marriage ban, which was instituted by Proposition 8. The judge ruled that the ballot measure, approved by voters in 2008, violated same-sex couples' right to wed. Schwarzenegger (a Republican) and Brown (a Democrat) were technically the defendants in the case, but both politicians declined to pursue an appeal in defense of the law. Instead, the organization filed appeal. Imperial County, Calif. has also said it will defend the law if is found to have no legal standing. Lawyers for both entities argued before the judicial panel today.

"My problem is that, in fact, the governor's action and the attorney general's actions have essentially nullified the considerable efforts on behalf of the initiative to be placed on the ballot and obtain passage," said Judge Randy Smith, a conservative on the court appointed by President George W. Bush. He pointed out that the state executives have no power to nullify a ballot initiative, nor does the state legislature have the power to amend the ballot-approved law without voter consent.

"We have an attorney general and a governor with no ability to nullify the acts of the people, and then by not appealing they, in fact, do it," he said.

Judge Stephen Reinhardt, a liberal appointed by President Carter, concurred. "If the state doesn't defend it, it's just tossing in the towel," he said.

David Boies, representing those opposed to Prop. 8, argued that the parties in question have no legal standing in the case because they have suffered no "particularized injury." It does not matter that Schwarzenegger and Brown decided not to appeal the decision, he said.

Boies ceded the point, however, that the limited scope of the case extended both ways. In other words, if the ruling that Prop. 8 is unconstitutional were left to stand, the ruling may only technically apply to the two counties where the plaintiffs filed suit.

"We do have to depend on the governor and attorney general" to enforce the court decision statewide, Boies said.

Reinhardt quipped, "Well, then, you're lucky the election came out the way it did."

Judges Hint They'll Support Ruling Against Prop. 8
Calif. Court Hears Arguments on Proposition 8

Stephanie Condon is a political reporter for You can read more of her posts here. Follow Hotsheet on Facebook and Twitter.