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John Eastman on Proposition 8

August 16th, 2010

Some major new developments this past week, after Judge Vaughn Walker’s earth-shattering (yet, as I noted last week, predictable!) decision the week before holding that Proposition 8’s restoration of the traditional definition of marriage violated the federal Constitution. First, news accounts have suggested that Judge Walker may himself be in a long-term homosexual relationship that, if true, should have disqualified him from serving as judge in the case, as I argued in an op-ed published by the San Francisco Chronicle. Second, Proponents of the initiative had requested that Judge Walker put a hold on his decision so that the appellate courts could have a chance to review it. He agreed to hold it for a week, until 5:00 p.m. this coming Wednesday (August 18), but he also dropped a bombshell, questioning in his written ruling whether the Proponents would even be allowed to bring the appeal. They were allowed to intervene to defend the Initiative at trial, but the legal standard required for them to continue to press the matter on appeal is higher, when the government defendants themselves won’t file a notice of appeal. And as of today’s writing, it appears that an appeal is not going to be filed by ANY of the government officials who were named defendants in the case, including Attorney General Jerry Brown, who has a constitutional duty “to see that the laws of the State are uniformly and adequately enforced,” and Governor Arnold Schwarnegger, who has his own constitutional duty to see that the laws of the state, including initiatives adopted by the people of the state, are faithfully executed. While I believe that the Proponents have a very strong argument on why they have the legal ability to file the appeal themselves, if the Ninth Circuit Court of Appeals disagrees, Judge Vaughn Walker’s decision could be the final word on this monumentally important and highly controversial case. 

No matter what your position on the merits of Proposition 8 was, we should all be troubled by this attempt to manipulate the judicial process to prevent the kind of appellate court review that a case of this magnitude requires. So here’s the ACTION ITEM, and I hope all of you will join me in the effort. I’ve written an Open Letter to Governor Schwarzenegger urging him to file a notice of appeal this week. But I think we need to flood his office with calls urging him to do that. Attorney General Brown needs to hear from us, too. Phone numbers and fax numbers are available here. Please call today, and keep calling every hour, every day, until one of them files a notice of appeal!

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