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Patterico raises the issue.

Republican Meg Whitman now has a wedge issue in the California governor’s race, if she chooses to use it.

She also has a more subtle but much stronger issue: the responsibility of elected officials to defend the people’s laws.

Here’s why. The Ninth Circuit’s briefing schedule calls for the last brief to be filed by Prop. 8 supporters on November 1, 2010. The court has ordered the parties to discuss whether the
proposition’s defenders have standing on their own, given that the Attorney General and the Governor failed to fight for the law in court.

But here’s the thing: come November, there will be a new Attorney General in California  and perhaps more important, a new Governor. They will probably be sworn in before the appeals are decided. And the identity of the new Governor will probably decide whether California’s elected officials are going to join the appeal. (This assumes that procedural time limits don’t prevent them from joining an ongoing appeal by intervenor defendants. I dont know the answer to this question, but my educated guess is that there would be no procedural bar, as long as the appeal is still live.)

Our current Attorney General, Jerry Brown, refused to defend Prop. 8 and would continue this path as Governor. Meg Whitman, by contrast, was a Prop. 8 supporter. Presumably she would move to join the appeal if elected.

Since Meg Whitman campaigned for California Proposition 8 and presumably donated money to the cause, I would think this issue will raise itself sometime during the campaign. Moreover, Whitman is very close to LDS-Mormon former Massachusetts Governor Mitt Romney and the California LDS community.

My bet is that Whitman uses targeted direct mail to the Pro-Proposition 8 Protect Marriage list shortly before the early voting/absentee voter ballot request time. Also, flyers will appear at many Christian, especially Roman Catholic and LDS churches during this time. Undoubtedly, there will be a sermon/homily or two.

So, the answer is yes.

The 9th Circuit Court of Appeals granted the stay, pending an expedited appeal of the Federal District Court Order that held Proposition 8 violated the United States Constitution.

Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December6, 2010, at The James R. Browning Courthouse in San Francisco, California.

The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997).

Here is the order:

Perry v. Schwarzennegger – 9th Cir. – Order Granting Stay Pending Appeal

An interesting aside is the matter of standing – whether California Proposition 8 supporters have the right to appeal the decision.

There are two interesting aspects to this issue.

1. There will be an election in November of this year and both the California Attorney General and Governor WILL change. Both California Governor Arnold Schwarzenegger and Attorney General Jerry Brown oppose the stay and support the overturn of California Proposition 8. They both do have standing and a change in office by either Meg Whitman as Governor and Steve Cooley as Attorney General could change the standing issue – as one or both of them may very well flip on the issue.

2. Should the court of appeal agree with the district court that Proposition 8 proponents do NOT have standing to appeal, then they might very well decide that Proposition 8 proponents might not have been allowed to intervene in the trial court – and, thus vacate the entire trial. Hence, the case would have to be tried again.

In the meantime, there will be no further gay marriages in California, as the issue is played out in the political process.

Carrie Prejean has been fired as Miss California, reportedly for contractual violations.

Uh Huh……

The Courage Campaign is already up with ads to repeal California Proposition 8 which restored the traditional definition of marriage (one man and one woman) to the California Constitution last November. The California Supreme Court upheld the measure this morning.

Just minutes after the California Supreme Court decision upholding Prop. 8, the fight for marriage equality is already on again — as the 70,000-member Courage Campaign, a progressive group, has unveiled new ads and an online petition campaign aimed at getting the issue before California voters again.

Rick Jacobs, founder and chair of the Courage Campaign, said in an e-mail statement: “I am disappointed the Court ruled to deny marriage equality to Californians. These are fundamental constitutional rights that cannot be abolished by a ballot initiative. While we were hoping the Court would rule in favor of equality, we have been building the infrastructure to win marriage equality rights at the ballot box. Our members are ready to do the hard work needed to win.”

Do the California Democrat Governor canddiates want to run on gay marriage (since the Big 3 plus 1 Dianne Feinstein, Jerry Brown, Gavin Newsom and Antonio Villaraigosa support gay marriage)?

Steve Poizner, a Republican candidate for Governor has already blasted out an e-mail supporting the California Supreme Courts’ decision:

“The California Supreme Court took the appropriate action today in upholding the will of the people by affirming Proposition 8. The people of California have spoken. They voted decisively that marriage should remain between a man and a woman. That is also my personal view.

“There was much more at stake today than even the issue of gay marriage, as important and emotional as it is for so many people on both sides of the issue. If the Court had overturned Proposition 8, it would have had set a terrible legal precedent, divided Californians even further, undermined support for the judiciary and state government itself while serving as a tremendous blow to the fundamental American concept of government of the people, by the people and for the people.

“Regardless of which way the Court ruled today, a particularly shameful element of this issue has been the Attorney General’s unethical abandonment of his legal responsibility to the people of California. It is no surprise that Jerry Brown politicized and abused his latest position in an unprecedented way in order to play political catch-up with Gavin Newsom.

“As Governor, Brown opposed marriage for gay Californians. As a candidate for Attorney General, Jerry Brown refused to publicly support gay marriage. But once Gavin Newsom gained the upper hand on the issue with Democratic primary votes, Brown used his office as the state’s lawyer to suddenly become an advocate of gay marriage and attempt to subvert the twice expressed will of the people of California. As he enters the fifth decade of his political career, Jerry Brown seems determined to go down in history as the man who was on more sides of more issues than any other California politician.”

This repeal of traditional marriage issue will assure that the social conservative GOP and religious voter base will turn out for mid-term non-Presidential California elections. This will be unfavorable to Democrat candidates.

Can you see the Gavin Newsom vs. Jerry Brown ads in the Democrat Primary election? It will be “whether you like it or not” vs. “I proposed an illogical legal theory and avoided my responsibility to the people of California as Attorney General to help gay marriage.”

Somehow I think the GOP media consultants are licking their chops at the prospect of this highly polarizing campaign. One which either GOP candidates Meg Whitman or Steve Poizner will easily win.

My bet is that the Democrats will ask the Courage Campaign and others to defer until 2012.