California Supreme Court refuses to force state to defend Prop. 8

SAN FRANCISCO -- Same-sex couples in California may be one step closer to marriage equality.

The state Supreme Court on Wednesday denied the Pacific Justice Institute’s request to order Gov. Arnold Schwarzenegger and Attorney General Jerry Brown to appeal the federal ruling that deemed Proposition 8 unconstitutional.

The court’s ruling comes less than a week after appeals court rejected the conservative group’s attempt to force California to defend Proposition 8.

Attorney Brad Dacus, president of the Pacific Justice Institute, who argued that the California Constitution requires Brown to defend the state's laws, said he was disappointed with the court’s ruling.

"People on the left and right should both be mourning the fact that the attorney general and the governor are reneging on their oaths of office," Dacus told the San Francisco Chronicle after the ruling on Wednesday.

However, earlier on Wednesday, lawyers for Brown and Schwarzenegger both filed letters with the court maintaining the right of both officials to choose which laws they challenge or defend in court.

"Attorney generals are not potted plants in the litigation process. 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," lawyers for Brown told the court.

Not exactly citing the unconstitutionality of Proposition 8, Schwarzenegger’s lawyers issued a similar response.

"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."

The decision from both officials, as well ruling from both the Appeals and Supreme courts, raises serious questions about whether the Prop. 8 sponsors, Protect Marriage, have a right to defend the same-sex marriage ban in front of the Ninth U.S. Circuit Court of Appeals.

Judge Walker, who presided over the case in recent months, and who ruled Proposition 8 unconstitutional had allowed Protect Marriage to defend the proposition but also expressed doubts on their right to appeal based on whether or not proponents of a ballot measure should represent the state’s interests; especially since state officials refuse to defend it.

The marriage equality debate will resume in early December when the Ninth U.S. Circuit Court of Appeals hears arguments from Protect Marriage lawyers about why they have a right to defend Proposition 8.

If the Ninth U.S. Circuit Court of Appeals decides that Protect Marriage has no grounds for appeal because they lack legal standing, Judge Walker’s ruling will become final.

At that point, it would be up to the U.S. Supreme Court to decide on whether or not to take up the case, and if they refuse to, same-sex couples in California will again have the right to marry.

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