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Arnold and Jerry Take a Legal Holiday

The opinions expressed by columnists are their own and do not necessarily represent the views of

When 52 percent of California voters passed Proposition 8 in November 2008, Attorney General Jerry Brown said he would defend the measure during the inevitable appeals. Then, as is his fashion, Brown changed his mind.

Ditto Gov. Arnold Schwarzenegger, who twice vetoed same-sex marriage bills passed by the Legislature in deference to California voters who passed an earlier same-sex marriage statute in 2000.

But after Proposition 8 passed, both refused to defend the measure.

This month, after U.S. District Judge Vaughn Walker ruled that Proposition 8 is unconstitutional, both Brown and Schwarzenegger urged Walker to lift a stay on his ruling -- the will of the voters be damned. They didn't even want to wait for the appeals process to play out.

If Walker has his way, there may not be an appeal. Last week, the judge wrote that the proponents who represented the measure in his court may not have legal standing to appeal. That could mean that if Brown or Schwarzenegger do not intervene, no one will be in a position to challenge Walker's decision, which the Ninth U.S. Circuit Court of Appeals stayed late Monday.

Who will represent Proposition 8? Walker wrote, "(P)roponents may have little choice but to attempt to convince either the governor or the attorney general to file an appeal to ensure appellate jurisdiction."

The conservative website is working to push the governor to defend the measure. "You took an oath when you became governor to uphold the Constitution of this state, and that includes the duty to see that the law is faithfully executed, including the constitutional right of the people of this state to amend their Constitution by initiative," explained constitutional law expert John C. Eastman.

The heat, however, really should be on Brown, who now is running for governor. As AG, it's Brown's job to represent the people in court.

As former state attorney general and now Rep. Dan Lungren, R-Gold River, put it, "I defended laws that I voted against. That was my obligation. You do your best job. You try to find the best arguments that you can, irrespective of the subject matter."

If you don't want to do that, then don't run for the office.

Kevin Spillane, spokesman for Republican attorney general nominee Steve Cooley, said his candidate believes, "Unless something is blatantly unconstitutional, it is the responsibility of the attorney general to uphold the will of the people ... through the initiative process and the legislative process. The personal feelings, philosophy or the agenda of the occupant of the office shouldn't be imposed." (Democratic AG nominee Kamala Harris agrees with Brown.)

Sterling Clifford, Brown's campaign spokesman, told me that Brown decided not to defend the measure because "The attorney general's job is to make sure that California stays within the confines of the U.S. Constitution."

And: "To say that state resources should be used defending a law that no one thinks is constitutional, I don't think holds up."

Problem: The California Supreme Court upheld Proposition 8 by a 6-1 vote -- which tells you there's a lot of room for debate. At least, Brown could have hired outside lawyers to represent the voters if he found defending Proposition 8 so discomforting.

As it is, I don't know why Brown is running for governor. He doesn't seem to relish his responsibilities as the state's top lawman. Methinks what Brown really wants to be is a federal judge.

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