A judge for California's 3rd District Court of Appeal [official website] ruled [case summary; San Francisco Chronicle report] Wednesday that neither Governor Arnold Schwarzenegger nor Attorney General Jerry Brown [official profiles] is required to appeal last month's federal district court decision [JURIST report] finding California's ban on same-sex marriage [JURIST news archive] unconstitutional. Supporters of Proposition 8 [text, JURIST news archive], which banned same-sex marriage in California, had hoped the state would appeal the decision since it is not clear that the supporters have standing [LAT op-ed] to the challenge the decision. Writing for the Pacific Justice Institute [advocacy website], which filed the suit attempting to force a state appeal, attorney Kevin Snider stated [blog post]:
The duty to defend peacefully enacted laws is at its zenith when the voters have amended their own constitution. Should these elected members of the executive branch refuse to defend a constitutional amendment enacted in this manner, the Governor and the Attorney General will have seized an extraconstitutional power by creating what is tantamount to a constructive veto.Snider said the Pacific Justice Institute will appeal Wednesday's ruling. Schwarzenegger and Brown have both indicated that they will not cause the state to appeal the decision overturning Proposition 8 unless ordered to do so by a judge.
Last month, a three-judge panel for the US Court of Appeals for the Ninth Circuit [official website] issued a stay [JURIST report] of Judge Vaughn Walker's decision overturning Proposition 8 pending appeal. Earlier last month, Walker held that the same-sex marriage ban violated the guarantees of due process and equal protection under the US Constitution, but immediately stayed the ruling. Schwarzenegger, Brown and others filed motions [JURIST report] opposing the stay request, which led to Walker's refusal to issue a stay pending appeal. Schwarzenegger and Brown were originally defendants in the lawsuit against Proposition 8, and their refusal to oppose the stay request left defendant-intervenors Protect Marriage [advocacy website] and other groups to defend the law. The remaining defendant-intervenors have indicated they will, if necessary, appeal the case to the US Supreme Court.