Court won’t order California officials to appeal ruling that struck down gay marriage ban

Court won’t order California to defend Prop 8

SAN FRANCISCO — California’s highest court on Wednesday refused to order Gov. Arnold Schwarzenegger and the state’s attorney general to appeal a federal ruling that overturned the state’s gay marriage ban.

The state Supreme Court denied a conservative legal group’s request to force the state officials to defend the voter-approved ban.

The court did not explain why it rejected the emergency petition filed by the Pacific Justice Institute. The institute had argued that the attorney general and governor were required to uphold all laws, including initiatives passed by voters.

Earlier Wednesday, lawyers for Attorney General Jerry Brown and Schwarzenegger filed letters with the court maintaining state officers have authority to choose which laws they challenge or defend in court.

“The governor, like any litigant, has complete discretion over his own litigation strategy, including whether or not to appeal an order,” counsel Andrew Stroud wrote for Schwarzenegger. “Here, the governor exercised his discretion and decided not to file an appeal.”

Both men have declined to appeal Chief U.S. District Judge Vaughn Walker’s Aug. 4 ruling that found the ban, known as Proposition 8, violated gay Californians’ civil rights.

The measure approved by 52 percent of California voters in November 2008 had amended the state Constitution to outlaw same-sex unions five months after the state Supreme Court legalized them.

Schwarzenegger, who has been under pressure from fellow Republicans to appeal Walker’s decision, has said he supports the judge’s verdict. Brown, who is the Democratic nominee to succeed Schwarzenegger as governor, has said he cannot defend Proposition 8 because he agrees it is unconstitutional.

“Although it is not every day that the attorney general declines to defend a state law, the state Constitution or an initiative, he may do so because his oath requires him (to) support the United States Constitution as the supreme law of the law,” Deputy Attorney General Tamar Pachter wrote on Brown’s behalf Wednesday.

The coalition of conservative and religious groups that sponsored Proposition 8 has appealed Walker’s ruling to the 9th U.S. Circuit Court of Appeals. But doubts have been raised about whether its members have authority to do so because as ordinary citizens, they are not responsible for enforcing marriage laws.

The 9th Circuit has said that is one of the issues it will take up when it hears oral arguments in early December.

If the federal appeals court dismisses the appeal because the ban’s proponents lack legal standing, Walker’s ruling would become final unless the U.S. Supreme Court agrees to take up the case.

If the high court refuses to intervene, gay couples would be able to marry in California again.