Prop 8 Proponents Attempt to Make CA Attorney General Plaintiff in Federal Case; Extreme Group File to Intervene as Defendants

The official Proposition 8 proponents, who are the defendants in the federal case challenging the initiative, filed a motion to realign California Attorney General Jerry Brown as a plaintiff, even though the Attorney General has been characterized as a "nominal defendant." In their opposition, plaintiffs state:

The Attorney General should remain a defendant in order to preserve this Court's ability to award Plaintiffs the full relief that they seek: an injunction immediately directing the chief legal officer of California - and every state official subject to his supervising authority - to cease enforcing Prop. 8. An injunction against the Attorney General is the most effective means of ensuring that any remedial order issued by this Court is immediately implemented on a statewide basis.

Brown has been very vocal against Proposition 8, having refused to defend it in court challenges against it. Though he hasn't officially announced it, Jerry Brown intends to run for California Governor.

The two motions involving the attorney general:

Opposition by Plaintiffs to Motion to Realign Attorney General, filed 10-28-09

Opposition by California Attorney General to Motion to Realign Attorney General, filed 10-28-09

In other news on the case, Proposition and the Right to Marry reports:

On August 19th, Judge Vaughn Walker denied a motion to intervene in Perry v. Schwarzenneger by the Campaign for California Families (CCF). Represented by Liberty Counsel founder Matthew Staver, CCF opposes not only same-sex marriages, but any legal status for same-sex couples. CCF has a history of contratemps with Yes on 8 - the official Prop. 8 proponents - who are defendant-intervenors in the Perry case. CCF previously sought to intervene in Strauss v. Horton, 46 Cal.4th 364 (2009), but Yes on 8 publicly opposed its intervention. And Yes on 8 opposed CCF's intervention in the Perry case. Their divisions surfaced before the November 2008 election, when CCF opposed Prop. 8 for failing to ban domestic partnerships.

CCF appealed Judge Walker's order on their intervention motion. The Recorder reports on oral arguments in the appeal before a 9th Circuit panel. On The Recorder's account, the panel's judges appeared unsympathetic to Staver's attempt to identify CCF's particular interest as a proposed Perry party. Staver contended "that the official Prop 8 forces weren't adequately litigating the case and had stipulated away far too many facts" about gays and lesbians. As an alleged result, if Prop. 8 were upheld on narrow grounds, Staver claimed that it may easier to show that gays and lesbians are a "suspect class" - that they are a minority deserving heightened constitutional scrutiny when they seek constitutional protections.

The Recorder quotes Howard Nielson Jr. of Cooper & Kirk, co-counsel for the official Prop. 8 proponents in the Perry case. Nielson tried to hedge about what facts proponents had agreed not to contest, including whether sexual orientation is immutable.

(Major H/T to Proposition 8 and the Right to Marry)