We don't like Proposition 8, and neither does California Atty. Gen. Jerry Brown or Gov. Arnold Schwarzenegger. But there's a difference between opinion journalists and the state's constitutional officers. California's top public lawyer and its chief executive have an obligation to defend the laws of the state whether they like them or not — and that should include the ban on same-sex marriage.
Their refusal to defend the voter initiative against a federal lawsuit wasn't an issue earlier because ProtectMarriage.com, a key group behind Proposition 8, was allowed to take the role of legal defense in the trial phase. But now that the case is heading to an appeals court, it's doubtful that the group can continue in that role. In general, the parties appealing a court decision must be directly affected by it to have legal standing. Schwarzenegger was sued, not ProtectMarriage.com or other supporters of Proposition 8, and the trial judge's decision clearly stated that the resumption of same-sex marriages would not harm heterosexual unions in any meaningful way.
Last week, a state court turned down a request by the Pacific Justice Institute to force Schwarzenegger and Brown to defend Proposition 8. Its decision was understandable; the governor and attorney general have a fair amount of discretion when it comes to determining their actions in particular cases. But just because the governor and attorney general made a legally defensible choice, that doesn't mean they made the ethical one. Proposition 8 was passed by voters and became California law. Voters have a right to expect the state to defend its laws.
Admittedly, Brown's position on this issue was compromised. In a different lawsuit, he wrote a legal opinion arguing that Proposition 8 was flat-out unconstitutional. If he had agreed to take on the federal suit, supporters of Proposition 8 would no doubt have claimed (with some justification) that he was not in a position to give it a robust and credible defense. But that's not a valid reason for Brown to leave Proposition 8's fate entirely in the hands of a private group. Brown has his legal view as to whether Proposition 8 is constitutional or not, but it's up to the courts to make the determination on that. The state still has an obligation to give the law the best possible defense.
At this point, the state could best fulfill its obligation by hiring an outside attorney to represent it in the appeal. Proposition 8 deserves to fail in the courts — but on its merits, not because the state's leaders picked and chose which laws to defend.