California doesn't have to defend Prop 8, court says
 

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posted Friday, September 3, 2010 - Volume 38 Issue 36

California doesn't have to defend Prop 8, court says
by Mike Andrew - SGN Staff Writer

A conservative legal group which sought to compel the state of California to defend Prop 8 in court has failed.

California's 3rd Appellate District Court summarily dismissed their suit on September 2.

The Pacific Justice Institute filed a petition with the court on August 30 for an emergency order requiring California's Attorney General Jerry Brown and Gov. Arnold Schwarzenegger to defend the state's ban on same-sex marriage.

The court did not give a reason for dismissing their request.

U.S. District Judge Vaughn Walker ruled Prop 8 unconstitutional on August 4.

The state of California has until September 11 to appeal Walker's decision, but both Brown and Schwarzenegger have said they do not plan to file an appeal.

Brown had declined to defend Prop 8 before Judge Walker on the grounds that he was sworn to uphold the state and federal constitutions and therefore could not defend a law he believes is an unconstitutional violation of Californians' civil rights.

Prop 8's sponsors have already appealed Walker's decision.

The 9th Circuit Court of Appeals may rule that they lack legal standing to do so, however, because they do not represent the state of California and are not responsible for enforcing the state's laws.

Both Judge Walker and the attorneys who argued the case against Prop 8, Ted Olson and David Boies, have said they doubt Prop 8 supporters have standing to file an appeal.

In seeking to force Brown to appeal, Pacific Justice Institute sought to avoid the possibility that the 9th Circuit might dismiss the appeal on the technical grounds of legal standing without ruling on the underlying issue of Prop 8's constitutionality.

Brown's office continues to insist that he will not appeal Walker's decision.

"The attorney general does not believe that he can be forced to prosecute an appeal of a decision with which he agrees," Brown spokeswoman Christine Gasparac told AP reporters on August 31.

The conservative group also named Schwarzenegger in its suit because California's Constitution gives the governor final say when he and the attorney general disagree on legal issues.

Twenty-seven Republican members of the California Assembly sent Schwarzenegger a letter on August 31 saying the governor should defend the rights of voters who passed Proposition 8 almost two years ago. Schwarzenegger also insists he will not appeal Walker's decision.

The 9th Circuit has scheduled oral arguments on the appeal for the second week in December.

Pacific Justice Institute describes itself as "a non-profit 501(c)(3) legal defense organization specializing in the defense of religious freedom, parental rights, and other civil liberties."

Dacus was a legislative aide to conservative Sen. Phil Gramm (R-TX) before getting his law degree. He founded Pacific Justice Institute in 1997.



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