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)

San Francisco Voices Support for Federal Case Against Prop 8

The city of San Francisco has joined the chorus of voices supporting the overturn of Proposition 8 in the courts by backing the federal case against the initiative being argued by Ted Olson and David Boies. Attorney General Jerry Brown and California Gov. Arnold Schwarzenegger has already stated support for the case.

Thursday night, City Attorney Dennis Herrera's office filed an amicus curiae (friend of the court) brief in U.S. District Court arguing that Proposition 8 was motivated by hatred of gays and lesbians and violates their constitutional right to be free of discrimination.

Despite the fact that the Yes on 8 campaign claimed Prop 8 was to protect traditional marriage and children, the city attorney said, "excluding same-sex couples from marriage does nothing to advance those goals . . . (it's) real aim (was) harming gays and lesbians and expressing moral disapproval of them."

“San Francisco is presently compelled by Proposition 8 to violate the federal constitutional rights of gay and lesbian citizens,” City Attorney Dennis Herrera and Chief Deputy Therese Stewart state in their 49-page amicus brief. “[Proposition 8] offends the federal Equal Protection Clause even applying the most deferential test.”

Herrera and Stewart spearheaded the successful litigation that led to the California Supreme Court recognizing marriage as a fundamental right guaranteed to all Californians under the state constitution. Those rights were later stripped by Proposition 8, which amended the state constitution.

“City Attorney Herrera and Chief Deputy Stewart have not only been inspiring leaders of this fight, they are also two of the foremost legal authorities in this arena,” American Foundation for Equal Rights Board President Chad Griffin said, the organization responsible for the federal case against Prop 8. “Their support bolsters our work to overturn Proposition 8 and guarantee that every American is treated equally under the law.”

The city supported its argument by citing the Supreme Court's 1996 ruling that struck down Colorado's ban on state and local gay-rights measures and said a law motivated by hostility toward gays and lesbians is unconstitutional.

Shannon Minter, legal director of the National Center for Lesbian Rights, told the San Francisco gate that his organization may be making an official statement of support soon, too.

The federal suit is "going forward, and we certainly want it to succeed," Minter said.

VIDEO: Jerry Brown Speaks to CNN on His Support for Marriage Equality

California Attorney General Jerry Brown speaks to CNN about his support for the federal case against Proposition 8 and his belief that extending full rights to same-sex couples is the way of the future.