Schwarzenegger tells California Supreme Court it can’t make him appeal gay marriage ruling

By Lisa Leff, AP
Wednesday, September 8, 2010

Schwarzenegger continues to reject Prop 8 appeal

SAN FRANCISCO — California’s governor does not have the legal duty to appeal the recent ruling that overturned the state’s same-sex marriage ban, a lawyer for Gov. Arnold Schwarzenegger said Wednesday.

In a letter requested by the California Supreme Court, counsel Andrew Stroud said the governor, “like any litigant, has complete discretion over his own litigation strategy, including whether or not to appeal an order.”

The letter came in response to an effort by a conservative legal group to force Schwarzenegger and Attorney General Jerry Brown to challenge a federal judge’s Aug. 4 ruling that declared the voter-approved ban unconstitutional.

The Pacific Justice Institute has petitioned the Supreme Court to order the two officials to appeal Chief U.S. Judge Vaughn Walker’s decision to the 9th U.S. Circuit Court of Appeals. The institute brought its motion on behalf of Joshua Beckley, a San Bernardino pastor.

A midlevel state appeals court rejected a similar request last week without asking for Brown or Schwarzenegger’s input. But the high court invited them to weigh in before it makes its decision.

The institute maintains the attorney general and governor are required to defend all state laws, including those passed by voters. The same-sex marriage ban, known as Proposition 8, was approved by California voters as a constitutional amendment in November 2008.

But Stroud said California law does not allow citizens to turn to the courts if they are unhappy with a lawful decision that is within a state official’s purview.

“Here, the governor exercised his discretion and decided not to file an appeal,” he wrote. “Although Beckley may not agree with the manner in which the governor chose to exercise his discretion, he cannot compel a different result through this action.”

Writing for Brown, Deputy Attorney General Tamar Pachter called the institute’s emergency petition “too little, too late.” Pachter noted that the attorney general also refused to defend Proposition 8 in Walker’s court because he agreed with the two gay couples who sued to strike it down that it violated their civil rights.

“Petitioner’s last-minute invocation of a constitutional crisis notwithstanding, the attorney general’s decision not to appeal in Perry v. Schwarzenegger from a judgment he agrees with is an ordinary and sound exercise of the discretion secured by law to his office,” Pachter wrote.

The coalition of religious and conservative groups that sponsored Proposition 8 two years ago already have asked the 9th Circuit to reverse Walker’s ruling. But doubts have been raised about whether its members have the authority to do so because as ordinary citizens they are not responsible for enforcing marriage laws.

Pachter called it “farfetched” to suggest the attorney general is obligated to join the appeal “to manufacture federal appellate jurisdiction for a private party.”

Pacific Justice Institute chief counsel Kevin Snider disagreed in a written reply also filed with the Supreme Court Wednesday. Snider said state law defines the attorney general’s job as including the responsibility to “prosecute or defend all causes to which the state or any state officer is a party.”

“Refusing to defend a constitutional provision is an abdication of his duties and cannot be squared with the plain meaning of the code,” he said.

The federal appeals court has said that is one of the issues it will take up when it hears oral arguments in early December.

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