…So what is the result? It seems to me that the gay couple still wins, but that Judge Vaughn Walker’s opinion is also wiped away. The gay couple wins because the government never shows up to defend the statute; the plaintiffs win, in essence, a default judgment. But without an opinion, there is no precedent to apply on Proposition 8 throughout the state of California. That leaves the winner, oddly, as Jerry Brown. As governor, Brown could order state and local officers not to enforce Proposition 8 based on the judgment in Perry or even on the reasoning of Windsor. In fact, it appears Brown may have already done so.
So Brown comes out the big winner. He can delay or even nullify an initiative enacted by the people of California simply by refusing to defend it in court — despite the fact that the whole point of an initiative is to pull an end-run around recalcitrant state officials. And if a court strikes down the initiative, Jerry Brown gets to decide whether and how to enforce it in this case. Brown has effectively defied the will of a majority of the people of California.
So, in the future, when this Democratically controlled state has its hands tied by the voters, like Prop 13 did for property taxes in the late 70’s, all the state has to do is have someone bring it to court and then not defend it. Sick.