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John Eastman, Constitutional Law Attorney

August 14, 2010

[Publisher's Note: As part of an ongoing effort to bring original, thoughtful commentary to you here at the FlashReport, we are pleased to present this column from John C. Eastman. - Flash]

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Dear Governor Schwarzenegger,

As you know, in November 2008, more than seven million voters in this State voted to approve Proposition 8, restoring the traditional definition of marriage that had existed in California since its founding as an institution comprised of one man and one woman.  Those who lost the election sought refuge in the courts, claiming that the people of California did not have the authority to amend their own constitution in this way.  That effort was rebuffed by the Supreme Court of California, the very same Court that just a year earlier had struck down California’s statutory definition of marriage as consisting of one man and one woman.

Not satisfied with the basic policy judgment made by the people of this State or their inability to get the California Supreme Court to overturn the people’s decision, those on the losing side of the election then went to federal court, asking that court to do something no federal court had ever done and hold that the centuries-old definition of marriage was unconstitutional.  Despite Supreme Court precedent directly on point, rejecting that very claim nearly forty years ago as not even raising a federal question, a single federal district judge has now overturned an initiative of the people of this State.  Whatever you think of the merits of Judge Walker’s decision—I happen to think it seriously flawed—the people of this State deserve to have their initiative reviewed by the appellate courts.  The issues presented here are simply too important to have final resolution at the hands of a single lower-court judge.
Yet that outcome is a distinct possibility if you do not file a notice of appeal.  In his decision denying the request for a stay, Judge Walker has suggested that the initiative’s proponents may not even have standing to appeal his decision if the official government defendants do not file an appeal of their own.  While it seems clear to me that under California law the proponents of an initiative do have a sufficiently concrete interest to meet the federal Constitution’s requirements for standing, we should not let the full appellate review that this case deserves turn on such a side issue.  You can avoid that side-show by simply filing a notice of appeal.  The proponents of the initiative can then continue the defense that they alone have provided all along.

I know that you have opposed Proposition 8, and recently even opposed the request for a stay of Judge Walker’s decision.  But regardless of your position on Prop 8, the issue before us is whether the People are entitled to full access to the appellate courts so that this critical societal issue may be fully heard, whatever the outcome.  I believe you have a duty to the People of California to file the notice of appeal even though you are personally opposed to Proposition 8.  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.  To be sure, you also took an oath to uphold the Constitution of the United States, but the constitutionality of a matter such as this is decided by higher courts after a rigorous examination and presentation of the issues by both sides. The People of this State deserve better – they deserve to be heard in the appellate courts, particularly in a case as prominent and as hotly contested as this one has been.  They deserve a full consideration on appeal, by the Ninth Circuit Court of Appeals and, if necessary, by the Supreme Court of the United States.

Of course, we would not be in this position if the Attorney General of this State had fulfilled his own constitutional duty “to see that the laws of the State are uniformly and adequately enforced.”   But given his active complicity in cooperating with the Plaintiffs in the case to have Proposition 8 overturned, I sincerely doubt that he will suddenly come to the defense of the majority of our fellow citizens who adopted Proposition 8 on his own.  Under Government Code Section 12013 you have the authority to direct that he appear on behalf of the State.  If he refuses, you should file the notice of appeal yourself, employing additional counsel as you deem expedient, as authorized by Section 12013. As you know, you have been represented by separate counsel throughout this case.

Finally, I strongly urge you to direct counsel to mount a vigorous rather than half-hearted defense of Proposition 8 before the Court of Appeals and ultimately the Supreme Court of the United States.  Perhaps that initiative will be held unconstitutional at the end of that process, but if it is not given a fair shake, the more than 7 million voters who voted to retain the traditional definition of marriage will always think, with good reason, that the judicial process was manipulated to produce an outcome favored by some in government at the expense of the sovereign will of the people.  That would not be good for the rule of law.  It would not be good for our democratic institutions.  And it would make our state even more polarized and less manageable for your successor than the one you inherited from your predecessor.

I implore you, therefore, to direct your attorneys to file, at the very least, a pro forma notice of appeal. 


                    John C. Eastman


A nationally recognized Constitutional Law expert, Dr. John C. Eastman is Former Dean and Donald P. Kennedy Chair of the Chapman University School of Law.  Eastman is also a Senior Fellow with the esteemed Claremont Institute.

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