Prop 8 Question

[stevesan at umich.edu]

I guess a formal answer to Eric's question would be that another defendant successfully intervened; there wouldn't be a default judgment because there is a party willing to defend.  

But this raises what I think is the related but more fundamental question: why should a private group (whose members and counsel, for what it's worth, profess an overtly religious agenda) be allowed to decide and articulate what California's legitimate interests are in denying equality to same-sex couples?  

It's not unheard of for private parties to intervene as defendants in constitutional lawsuits -- a group of affirmative action supporters did so in Grutter.  But has a private group ever been allowed to step into the state's shoes and defend at the trial court level when the state declines to do so? 

That this is a ballot initiative, not an ordinary law, has some relevance.  It's 9th Cir law that the proponents of an initiative have a presumptive interest in defending their handiwork against challenge.  But this strikes me as unsound.  Once something becomes law, it's no longer some private group's property or idea; it is now the sovereign's law, and if the sovereign defaults in its defense, that should be the end of the matter. 

Steve Sanders



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-----Original Message-----
From: "Eric Segall" <esegall at gsu.edu>
Date: Mon, 15 Mar 2010 10:37:51 
To: <VOLOKH at law.ucla.edu>; <conlawprof at lists.ucla.edu>
Subject: Prop 8 Question

A while back we discussed whether there was jurisdiction over this case in light of the absence of an official state defendant. I have a more basic but related question. Why wouldn't a default judgment be entered in light of the absence of a state defendant? This probably raises the more important question of what happems to a state constitutional amendment that the state does not want to enforce. I think the answer is, go to state court which is not bound by Article III, but I am not sure. Also, how is the State of California bound by a case they are not defending in the absence of a default judgment? 

Any thoughts would be appreciated and I am definitely not suggesting I have good or any answers to these questions.

Thanks,

Eric

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