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Published: October 13, 2009

“With enemies such as these, who needs friends?"

Backers of Prop. 8 don’t want Jerry Brown listed as on their side in federal challenge to same-sex marriage ban

A judge is expected to rule tomorrow on a motion by backers of Proposition 8 seeking dismissal of a federal lawsuit brought against it by supporters of same-sex marriage. And, even though California Attorney General Jerry Brown is named as a defendant in the suit, he has sided with opponents of the proposition and says the challenge should move forward.

The lawsuit, Perry vs. Schwarzenegger et al, is being heard in U.S. District Court for Northern California in San Francisco and names Brown and other state officials, including the governor, as defendants. Chief U.S. District Judge Vaughn Walker has scheduled a hearing tomorrow to rule on a motion for summary judgment filed by Prop. 8 supporters, who argue the judge should dismiss the suit before it goes to trial because the plaintiffs lack sufficient legal grounds to strike down the voter-enacted ban on same-sex marriages in California.

But in papers filed with the court on Sept. 23, Brown says “the Attorney General has conceded the material facts in the plaintiffs’ complaints” and that he “agrees with the plaintiffs that Proposition 8 violates the 14th Amendment.” Lawyers for Gov. Schwarzenegger and other state officials named as defendants filed papers saying they “neither support nor oppose” the motion to dismiss.

As a result of Brown’s refusal to defend Proposition 8 as the state’s attorney general, supporters of the measure filed an unusual motion on Oct. 2 asking Judge Walker to remove the attorney general as a defendant in the case and instead include him as a named plaintiff.

"As matters now stand, plaintiffs have a party on the other side of this dispute who shares their ultimate goal of invalidating Proposition 8," said attorneys defending Proposition 8 in filings with the court. "Plaintiffs might well turn the old adage on its head and ask: With enemies such as these, who needs friends?"

According to an Oct. 5 story about the case, the San Jose Mercury News noted, “In numerous legal briefs, Brown has sided with the plaintiffs' central legal argument that Proposition 8 violates the equal protection rights of same-sex couples seeking the right to marry. It is a rare example of the state's top lawyer declining to defend a California law in the courts.”

Because of Brown’s unwillingness to defend Prop. 8, and the Schwarzenegger Administration’s ‘neutral’ position on the lawsuit, Judge Walker has allowed lawyers for the Yes on 8 campaign to intervene in the case in defense of the measure.

When same-sex marriage backers unsuccessfully challenged Prop. 8 before the California Supreme Court, Brown also sided with those urging the state’s highest court to invalidate the voter-approved constitutional amendment. California justices ultimately ruled 6-1 that Proposition 8 was a valid amendment to the state constitution.

After losing their case before the California Supreme Court, opponents of the proposition turned to the federal courts in their efforts to invalidate the prohibition on same-sex marriages, arguing it violates equal protection guarantees of the U.S. constitution. Should Judge Walker reject the motion for summary judgment tomorrow, the case is scheduled to go to trial in January 2010.

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