Calif. court mulls appeal rights of Prop 8 backers

LISA LEFF | Associated Press

SAN FRANCISCO — California’s same-sex marriage ban endured its latest legal test Tuesday as the state’s high court grilled attorneys on whether Proposition 8′s backers have legal authority to appeal a federal ruling that overturned the voter-approved measure.

The tenor of the justices’ questioning during the more than hour-long hearing often leaned in favor of arguments by backers of the ban, who argue that the state Constitution gives ballot initiative proponents legal authority to defend their measures in court.

On that critical question, several justices noted that the California Supreme Court always has, as a matter of practice if not written policy, allowed the sponsors of ballot questions to appear before it when their measures were challenged.

“Never in any recorded (case) have proponents been denied the right to advance their interests,” Associate Justice Kathryn Werdegar noted during the closely watched arguments. “The present state of California law is we allow liberal intervention.”

The Supreme Court is examining the scope of the power afforded the official backers of ballot initiatives at the request of a federal appeals court that is reviewing a federal judge’s year-old ruling that Proposition 8 violates the constitutional rights of same-sex couples.

The 9th U.S. Circuit Court of Appeals has expressed doubts about the ability of Proposition 8′s sponsors to challenge the lower court ruling absent the involvement of California’s governor or attorney general, both of whom agreed the ban was unconstitutional and refused to appeal.

But the 9th Circuit punted the question to the California Supreme Court earlier this year, saying it was a matter of state law. Although the appeals court still must decide for itself if Proposition 8′s supporters are eligible under federal court rules to appeal the ruling that struck down the ban, the state court’s input is likely to weigh heavily in its decision.

If the state Supreme Court says the ban’s proponents did not have standing to appeal, and if the 9th Circuit and ultimately the U.S. Supreme Court ultimately agree, it could clear the way for same-sex marriages to resume in California.

If the court holds the proponents were qualified to appeal and the 9th Circuit agrees, the appeals court would then weigh the broader civil rights implications of Proposition 8. A decision on the ban’s constitutionality is expected to be appealed to the U.S. Supreme Court.

While agreeing that the state Supreme Court has never refused to give initiative proponents a seat at the defense table, several justices quizzed Charles Cooper, an attorney for the coalition of religious and conservative groups that sponsored Proposition 8, on whether there was a difference between the court using its discretion to do so and issuing an opinion that would be binding on future courts.

Chief Justice Tani Cantil-Sakauye observed that in the vast majority of cases in which initiative backers have been allowed to defend their measures, they have been “standing shoulder-to-shoulder” with the attorney general’s office, not acting on their own.

Cooper agreed that he was seeking to remove some of the court’s discretion, but said the justices could draft their guidance so it would only apply to situations, such as with Proposition 8, where state officials have refused to defend laws already approved by voters.

Theodore Olson, the attorney representing the two same-sex couples who successfully sued in federal court to strike down Proposition 8, argued that permitting initiative sponsors to step in under such circumstances would infringe on the authority of elected state officials.

“There is nothing in the California Constitution or the statutes that give private citizens the right to take on the attorney general’s constitutional responsibility to represent the state in litigation in which the state or its officers are a party,” Olson said.

“Is there any authority for the attorney general and the governor to second-guess a majority of the population?” Associate Justice Ming Chin interrupted.

Olson answered yes, explaining that the attorney general is obligated not to defend laws he or she judges to be unconstitutional.

Associate Justice Goodwin Liu, who was sworn in on Thursday and serving his first day on the court Tuesday, picked up the line of questioning.

“It seems to me the 9th Circuit has set up a hoop the initiative proponents must jump through to get to appeal,” Liu said. “Given the fact that initiative proponents clearly would have standing to appeal if this litigation was in state court … why can’t we read (the U.S. Constitution) to give the initiative proponents what they need to jump through that hoop?”

Associate Justice Joyce Kennard, who along with Werdegar was in the 4-3 Supreme Court majority that briefly cleared the way for same-sex marriages in California before voters passed Proposition 8, also questioned how the court could deny initiative sponsors the right to appeal in cases where state officials have refused to defend a law.

“It would appear to me that to agree with you would nullify the great power the people have reserved for themselves pertaining to proposing and adopting state Constitutional amendments,” she said.

Werdegar suggested that the court could tell the appeals court that it ordinarily grants initiative proponents the right to defend their measures, but stop short of establishing a new legal precedent.

The court has 90 days in which to issue its opinion.

—  John Wright

NY MARRIAGE UPDATE: T-Minus 56 hours

As the number of people living in jurisdictions with marriage equality doubles this weekend, here are some of the things going on around New York to celebrate — and protest that state’s new law:

Niagara Falls will be lit in rainbow colors on Sunday.

• To avoid delays and confusion, New York City will limit the number of marriages on Sunday to 764. Licenses will be distributed through lotteries for specific slots in each of the five NYC boroughs. The lottery opened on Tuesday and closed today at noon. Winners will be announced Friday. A lottery — what a great way to ensure the sanctity of marriage.

• Sunday will be a record day for marriages in New York City. The previous record was set on Valentine’s Day in 2003, when 621 opposite-sex couples wed.

• Rod and Ricky, the same-sex puppets who meet and fall in love in Avenue Q, plan to be among those in line for marriage licenses at City Hall.

• In Albany, Mayor Jerry Jennings will marry up to 10 couples at city hall right after midnight. A state Supreme Court judge will be at the Common Council chambers to waive the 24-hour waiting period.

• Mayor Bloomberg said he doesn’t expect people to be camping out in line waiting for marriage licenses. He says it’s not like buying an iPad 2. Right. Priorities. After all, which is more important?

—  David Taffet

Calif. AG: Prop 8 backers can’t defend marriage ban

Attorney General Kamala Harris

LISA LEFF | Associated Press

SAN FRANCISCO — California’s attorney general has again come out against the state’s same-sex marriage ban, this time telling the state Supreme Court the proponents of successful ballot initiatives do not have the right to defend their measures in court.

Kamala Harris, a Democrat who succeeded Gov. Jerry Brown in January as attorney general, submitted an amicus brief Monday in the ongoing legal dispute over the voter-approved ban known as Proposition 8.

In it, she argued that only public officials exercising the executive power of government have authority to represent the state when laws passed by voters or the Legislature are challenged.

“California law affords an initiative’s proponents no right to defend the validity of a successful initiative measure based only on their role in launching an initiative process,” Harris wrote.

The question of where the role of ballot measure backers ends is critical to the legal fight over California’s ban on same-sex marriages. Both Brown and former Gov. Arnold Schwarzenegger refused to defend the 2008 constitutional amendment on appeal after a federal judge struck it down last summer as a violation of civil rights.

Proposition 8′s sponsors asked the 9th U.S. Circuit Court of Appeals to allow them to step in, but the court punted the question to the California Supreme Court earlier this year, saying it was a matter of state law.

If the sponsors are not permitted to intervene, the lower court ruling overturning Proposition 8 will stand.

Lawyers for the coalition of religious and conservative groups that qualified the gay marriage measure for the ballot and campaigned for its passage have argued that initiative proponents need to be allowed to advocate for laws in court to prevent elected officials from effectively vetoing measures by not defending them in court.

Harris contended in her brief that rather than empowering citizens, granting the sponsors of initiatives the ability to overrule the governor and attorney general’s judgment “would rob the electors of power by taking the executive power from elected officials and placing it instead in the hands of a few highly motivated but politically unaccountable individuals.”

The California Supreme Court is expected to hold a hearing in the case before the end of the year.

Republican State Sen. Tom Harman of Orange County introduced a bill that would grant ballot measure sponsors the right to represent the state when elected officials refuse to defend enacted laws in court. The Senate Judiciary Committee defeated it on a 3-2 vote Tuesday.

—  John Wright

We’re used to state-by-state laws on same-sex marriage, but what about county by county?

Conservative House Republicans in Iowa have introduced a bill that would prohibit county recorders form issuing marriage licenses — and block the state Supreme Court from reviewing the issue.

The apparent goal of the legislation is to prevent additional same-sex marriages in Iowa before a constitutional amendment can be passed to ban them. The Iowa House has already approved a resolution that would launch such an amendment.

But even the state’s attorney general says the latest proposal is unconstitutional because it would block review by the state Supreme Court:

That possible outcome: Iowans could challenge a recorder’s decision in trial courts, but those decisions could not be appealed to the Iowa Supreme Court.

That would make the lower court ruling final and would mean Iowa could become a patchwork of counties in which some recognized the law and others did not.

“I think the result is that you would have a hodgepodge of rulings across the state,” Bartrum said. “It would depend on whatever the local district judge thought because there would be no uniform appeal.”

While this legislation would clearly be a bad thing for Iowa, where same-sex marriage is already legal, we wouldn’t mind seeing a different version of it in Texas. Since our state leaders claim they’re all about local control, why not let the gays marry in Dallas County?

—  John Wright

Wyo. lawmakers say gay divorce case highlights need to define marriage

BEN NEARY  |  Associated Press

CHEYENNE, Wyo. — Some top Wyoming lawmakers said Friday, Jan. 14 that a same-sex divorce case pending in the state Supreme Court underscores the need to clarify what constitutes legal marriage in the state.

District Judge Keith Kautz of Niobrara County in November dismissed a case in which two women who were married in Canada in 2008 were seeking a divorce in Wyoming. Kautz said state law didn’t give him jurisdiction over ending the marriage. One of the women appealed.

Senate President Jim Anderson, R-Glenrock, and House Speaker Ed Buchanan, R-Torrington, both said in interviews Friday that the Niobrara County case shows that the Legislature needs to clarify state law. Attempts to reach lawyers representing the divorcing couple were unsuccessful.

One provision of Wyoming law says marriage can exist only between one man and one woman. But another provision says the state will recognize valid marriages performed elsewhere.

Currently, performing a same-sex marriage is legal in only a handful of states, mostly in the Northeast.

A proposal pending in the Wyoming Senate would let voters decide whether to amend the state constitution to specify that the state would recognize only marriages between a man and a woman. The Senate on Friday sent the measure, Senate Joint Resolution 5, to the Judiciary Committee.

Rep. Cathy Connolly, D-Laramie, a lesbian, has pushed for increased rights for gays and lesbians in the state. She introduced a competing bill Friday, House Bill 143, that would recognize same-sex marriages.

Another House bill would ban same-sex marriages and specify that Wyoming courts wouldn’t have jurisdiction over same-sex marriages.

The House last year voted down a bill that would have allowed voters to decide whether to amend the state constitution to deny recognition of same-sex marriages.

“So often, what we hear from the media and others is that this is a waste of time, and this is not necessary,” Anderson said of addressing the same-sex marriage issue. “I think it deserves a certain amount of time because I think the people of Wyoming want this issue debated. And for the most part, I think the people of Wyoming want an opportunity to vote on that issue.”

Buchanan said the existing state statutes are in conflict.

“Too bad this wasn’t done a year ago,” Buchanan said, adding that would have given the Supreme Court clear direction on how to handle the divorce case.

Buchanan said he believes some state lawmakers want to forbid same-sex marriages in Wyoming because they disagree with the practice.

“I think folks want to protect the traditional notion of what marriage is, and that is a relationship between a man and a woman,” Buchanan said. “But also, they just want this issue to be decided one way or another. So I think it’s just kind of twofold.”

Sen. Curt Meier, R-La Grange, is the main sponsor of the joint resolution that would put the question of whether to deny recognition of same-sex marriages performed elsewhere before Wyoming voters. He said Friday that the pending same-sex divorce case isn’t driving his bill.

“I’m doing this because over the last several years there have been several polls, and the voters of the state of Wyoming have expressed a sincere interest that that’s an issue that they want to vote on, and this will give them an opportunity to do that,” Meier said.

—  John Wright

N.C. high court voids lesbian lawmaker’s 2nd-parent adoption

GARY D. ROBERTSON | Associated Press

RALEIGH, N.C. — North Carolina’s highest court on Monday, Dec. 20 voided a state senator’s adoption of her former domestic partner’s biological son, a move that appears to close a method for same-sex couples to adopt unless the Legislature steps in.

The state Supreme Court ruled 5-2 that the adoption of Melissa Jarrell’s son by state Sen. Julia Boseman was invalid because a Durham County District Court judge waived a requirement five years ago that Jarrell had to give up her parental rights in the process.

Under the adoption plan approved by the lower court, Boseman became an adoptive parent while Jarrell retained full parental rights as well.

However, Associate Justice Paul Newby wrote for the majority that the adoption never occurred in the eyes of the law because lawmakers have made clear the biological parent must terminate a legal relationship with the child. That part of the ruling favored Jarrell, who had sued to negate the adoption after the couple separated.

She and Boseman, North Carolina’s first openly gay member of the General Assembly, had been living together when Jarrell gave birth to Jacob in 2002.

The majority of justices let stand another lower court ruling allowing the two to have joint custody of the child, saying it would be in Jacob’s best interest for the women, who have been sharing parental responsibilities, to rear him.

Still, the ruling eliminates a method for same-sex couples to adopt and could raise legal questions about so-called “second parent” adoptions like this one. They have been granted in Durham and Orange counties in recent years, according to testimony and court documents.

“If our uniform court system is to be preserved, a new form of adoption cannot be made available in some counties but not all,” Newby wrote.

For such two-parent adoptions to occur by parents of the same gender — granting inheritance and other rights to the child — same-sex marriage would have to be created in North Carolina or the adoption law would have to be changed, said Michelle Connell, a Winston-Salem lawyer and chairwoman of the family law section of the North Carolina Bar Association.

Several Christian groups filed briefs arguing the adoption was illegal, while law professors and the American Civil Liberties Union urged the court to uphold Boseman’s adoption to ensure the child and others in similar situations would be in stable family environments.

Those issues are best addressed at the General Assembly, Newby wrote. At least 27 states permit second-parent adoptions through state law or based on evidence in local courts, according to the Human Rights Campaign, a national group that works for lesbian, gay, bisexual and transgender equality.

“The avenue is going to have to be changing the statute,” Connell said in an interview. Otherwise, she said, this ruling closes down the method completely. Republicans taking charge of the Legislature next month are considering whether to vote on a constitutional amendment that would prohibit gay marriage.

Associate Justice Patricia Timmons-Goodson wrote in a dissenting opinion that Jarrell was barred from challenging the decree because she missed deadlines to do so. In a separate opinion, Associate Justice Robin Hudson said there was no explicit prohibition against or permission for a waiver like the one Jarrell received.

“The majority overlooks the interests of this child and promotes (Jarrell’s) rights over those of the child, in direct contravention of the law as written,” Hudson wrote in arguing for a Court of Appeals ruling earlier this year upholding the adoption.

Jarrell attorney Leslie Fritscher said her client was pleased with the adoption being voided but was still reviewing the ruling granting joint custody.

Lawyer Jim Lea, representing Boseman, said the senator is pleased that she will remain part of Jacob’s life but is unhappy with the adoption decision. “If you have two loving parents that want to adopt a child … one should not be forced to comply with North Carolina statute by terminating parental rights,” he said.

Boseman, a Democrat from Wilmington, was first elected to the Legislature in 2004. She didn’t seek re-election this year and leaves office at the end of this month.

—  John Wright

ELECTION 2010: Gay marriage surfaces as an issue in state races

DAVID CRARY  |  Associated Press

NEW YORK — This election will be the first since the 1990s without a measure to ban gay marriage on any state ballot, yet the divisive issue is roiling races across the country during a time of tumult for the gay rights movement.

In Minnesota, New Hampshire, California and New York, gubernatorial campaigns have become battlegrounds for rival sides in the debate, with the Democratic candidates supporting same-sex marriage and the Republicans opposed.

In Iowa, voters will decide whether to oust three state Supreme Court justices who joined last year’s unanimous decision making the state one of five where gay marriage is legal.

And in Rhode Island and California, Democratic candidates are seeking to become the fourth and fifth openly gay members of Congress. The Californian, Palm Springs Mayor Steve Pougnet, has a husband and 4-year-old twins, and would be Congress’ first openly gay parent.

The races are unfolding on a rapidly shifting gay rights landscape, with activists elated by important court rulings, irked at setbacks in Washington and jolted by high-profile cases of anti-gay violence and bullying-provoked suicides.

The mixed emotions have been evident in recent days as a federal judge ordered a halt to enforcement of the military’s “don’t ask, don’t tell” policy. The Obama administration says it agrees with the judge that gays should be allowed to serve openly. Yet to the frustration of gay activists, the administration appealed the ruling, saying it preferred that Congress repeal the policy.

“It’s the best of times and worst of times,” said Richard Socarides, a former Clinton White House adviser on gay rights.

“Culturally you see a huge increase in acceptance of gays and lesbians, and in the federal courts you see for the first time a willingness to embrace the Constitution as a vehicle for securing equality for gay people,” Socarides said. “Yet in our nation’s politics, we see essentially the opposite.”

He said President Barack Obama has failed to deliver on his pledges to gays regarding marriage recognition and repeal of “don’t ask, don’t tell.”

“The president made a conscious decision coming in that these were second- and third-tier issues,” Socarides said. “People were very excited by him. But he overpromised and underdelivered.”

Obama said Thursday, Oct. 14 that the military policy “will end and it will end on my watch,” but he acknowledged the constraints of the legal process.

Republicans have not emphasized social issues as much as in recent elections, calculating that dismay over the economy and frustration with the Democratic agenda will be enough to post big gains. The GOP’s recent “Pledge to America” did not call for a federal ban on gay marriage or broach the issue of gays in the military.

“Even the most conservative Republicans understand that these issues don’t work on their behalf nearly as effectively as they did a few years ago,” said Fred Sainz of the Human Rights Campaign, a national gay rights group.

Brian Brown of the National Organization for Marriage, a major financial backer of campaigns opposing same-sex marriage, said the GOP would be unwise to soften its stance on the issue.

“We’re not saying the No. 1 issue in every state is same-sex marriage,” he said. “We are saying it’s an important issue, and Republicans abandon it at their peril.”

A look at some of the notable races:

CALIFORNIA:

The high-profile races for governor and Senate coincide with legal wrangling over Proposition 8, the ballot measure approved by California voters in 2008 that banned same-sex marriage.

A federal judge ruled in August that the ban is unconstitutional. The case will be heard before the 9th U.S. Circuit Court of Appeals in December. Attorney General Jerry Brown, the Democratic candidate for governor, supports same-sex marriage and has refused to defend Proposition 8 in court. His GOP opponent, Meg Whitman, opposes gay marriage and has pledged to defend the ban.

The Senate race has a similar split: Democratic incumbent Barbara Boxer supports same-sex marriage and Republican challenger Carly Fiorina opposes it.

Proposition 8 supporters organized a bus tour across the state intended to rally Latino support for Fiorina based on the marriage issue. They also released a TV ad in Spanish highlighting Boxer’s support for abortion rights and same-sex marriage.

___

NEW HAMPSHIRE:

Last year, Democratic Gov. John Lynch, who said he opposed gay marriage, signed a bill legalizing it after lawmakers approved provisions affirming religious rights.

Lynch is up for re-election, facing a Republican who opposes same-sex marriage, and the National Organization for Marriage is running ads against the governor depicting his signing of the bill as a betrayal of voters.

Andy Smith of the University of New Hampshire Survey Center said Lynch has a solid lead over GOP nominee John Stephen in the center’s latest poll, while voters seem relatively at ease with legalized gay marriage.

“When the economy is bad, it tends to blow social issues out the door,” Smith said. “Voters are more concerned about what’s on the table than what their neighbor is doing.”

___

MINNESOTA:

There’s a similar dynamic in the race to succeed Minnesota Gov. Tim Pawlenty. GOP candidate Tom Emmer opposes same-sex marriage, while Democrat Mark Dayton and independent Tom Horner support it.

The National Organization for Marriage has run TV ads for Emmer, highlighting the trio’s stances on marriage. The ads infuriated some gay rights groups because they used the image of civil rights leader Martin Luther King Jr.

University of Minnesota political scientist Larry Jacobs says Dayton appears to be leading, but the race is up for grabs. According to Jacobs, few voters consider gay marriage a vital issue, and Emmer has not emphasized it.

“In past years Republicans have used gay marriage as an issue to mobilize their base, to bring out conservatives,” Jacobs said. “This year they don’t need it.”

Brown, the National Organization for Marriage’s president, disagreed.

“When marriage becomes an issue, as it has in Minnesota, people understand what’s at stake,” he said. “This could be a decisive factor in governor’s race.”

___

NEW YORK:

The Republican candidate for governor, Carl Paladino, was considered an underdog from the outset in his race against Democrat Andrew Cuomo.

Now Paladino’s task may be even harder after his recent entanglement in gay-related controversies. He railed against gay marriage in a speech to Orthodox Jewish leaders, then called the bumping-and-grinding at gay pride parades disgusting.

Under fire from gay rights advocates, including the Cuomo campaign, he apologized, costing him his support from a leading rabbi. Meanwhile, news reports surfaced that Paladino was once landlord of two gay clubs in Buffalo.

___

IOWA:

Polls show Iowa voters evenly split on whether to oust three Supreme Court justices who were part of the decision legalizing gay marriage. If the effort succeeds, it would be the first time since Iowa adopted its current system for appointing judges in 1962 that voters opted to remove a Supreme Court justice.

The targets include Chief Justice Marsha Ternus, who said the three wouldn’t undertake a counter-campaign because they don’t want to set a questionable example for judges by campaigning and raising money.

Brown said removal of any of the justices would be a “game-changer” with national impact.

“Judges will have to sit up and take notice that they can’t just arbitrarily make up the law,” he said.

—  John Wright

Florida appeals court upholds decision overturning nation’s only gay adoption ban

Case likely headed to state Supreme Court

CURT ANDERSON  |  Associated Press

MIAMI — A Miami appeals court has upheld a ruling overturning Florida’s law banning adoption by gays.

The 3rd District Court of Appeal issued its decision Wednesday, Sept. 22 affirming a lower court’s decision that the ban is unconstitutional.

Florida is the only state with a law flatly banning gays from adopting children without exception. Gays can be foster parents in Florida.

A Miami-Dade County judge ruled the gay adoption ban unconstitutional in 2008, but the state appealed. The case will ultimately go to the state Supreme Court.

Martin Gill and his male partner, along with the American Civil Liberties Union, filed the lawsuit in their attempt to adopt two brothers who have been their foster children since December 2004.

—  John Wright

California Supreme Court refuses to force Gov. Schwarzenegger to appeal Prop 8 decision

Ruling means case may hinge on whether Yes on 8 has standing

Lisa Keen  | Keen News Service

The California Supreme Court on Wednesday night, Sept. 8 denied a petition from a conservative group seeking to force California Gov. Arnold Schwarzenegger to participate in an appeal of the Proposition 8 case.

The full court issued its decision with a simple two-sentence declaration, denying a petition from the Pacific Justice Institute. The denial came just hours after Schwarzenegger and state Attorney General Jerry Brown submitted letters to the court, explaining that they were not participating in the appeal of Perry v. Schwarzenegger.

In a letter from his attorney, Gov. Schwarzenegger indicated what had been uncertain before — that he had decided not to appeal the Proposition 8 court decision to the 9th Circuit.

The definitive statement from Schwarzenegger — coupled with the state supreme court’s refusal to require state participation in the appeal — means the ability of Proposition 8 proponents to appeal may depend entirely on the legal standing of the Yes on 8 coalition. (There is one remaining possibility: the County Board of Supervisors of Imperial County, California, has asked to serve as an intervenor in the appeal. Because the county issues marriage licenses, it may be able to demonstrate a necessary element of standing — that it is impacted by the district court decision.)

Gov. Schwarzenegger had until Sept. 11 to make a decision and, though his position on marriage equality for gay couples has been changing, his most recent statements seemed to indicate he would not direct the state’s attorney general to appeal the decision from the U.S. District Court in San Francisco.

That decision, issued Aug. 4 by Judge Vaughn Walker, found Proposition 8 violates the federal constitutional guarantee to equal protection. The Yes on 8 coalition filed its appeal, and a three-judge panel of the 9th Circuit has said it will hear the appeal during the first week of December, along with arguments concerning whether the Yes on 8 coalition has standing to appeal.

Hoping to shore up the legitimacy of that appeal, the Pacific Justice Institute, a conservative legal group, filed an appeal — Beckley v. Schwarzenegger — to the California Supreme Court this week, asking justices to force the governor to instruct the attorney general to join the appeal in the 9th Circuit.

The state supreme court ordered the governor and attorney general to weigh in on this matter Wednesday. And, in a five-page letter Sept. 8, Counsel for the Governor Andrew Stroud told the court, “Although Beckley may disagree with the Governor’s decision not to file a notice of appeal [in the Proposition 8 case in federal court], it was the Governor’s decision to make.”

A letter from Attorney General Jerry Brown’s deputy, Tamar Pachter, reiterated that Brown has long opposed Proposition 8 as unconstitutional and that Brown’s decision not to appeal the federal court decision in Perry v. Schwarzenegger “is an ordinary and sound exercise of the discretion secured by law to his office.”

Pachter says the Pacific Justice Institute’s petition is based on its “fears that the the federal courts will rule that [Yes on 8 proponents] lack standing to pursue their appeal …”

“But the Attorney General has no duty to appeal at all, let alone to file an appeal he has determined is legally unjustified, soley to manufacture federal appellate standing in private parties,” wrote Pachter.

Copyright ©2010 Keen News Service. ALL RIGHTS RESERVED.

—  John Wright

Court won’t force Calif. officials to defend Prop 8

Associated Press

SACRAMENTO, Calif. — A California court has refused to order Gov. Arnold Schwarzenegger and Attorney General Jerry Brown to appeal a ruling that overturned the state’s gay marriage ban.

The 3rd District Court of Appeal on Wednesday, Sept. 1 denied a conservative legal group’s request to force the officials to defend voter-approved Proposition 8.

Presiding Justice Arthur Scotland did not explain why the appeals court turned down the request filed two days earlier by the Pacific Justice Institute.

The institute now plans to take the matter to the California Supreme Court, Chief Counsel Kevin Snider said Thursday.

“We are disappointed that the appellate court showed indecisiveness in trying to prevent a constitutional crisis,” Snider said. “They didn’t want to deal with it.”

The institute maintains the attorney general and governor have the duty to uphold all laws, including those passed by voters.

Brown has said he cannot defend Proposition 8 because he thinks it is unconstitutional; Schwarzenegger has chosen to remain neutral.

Chief U.S. District Judge Vaughn Walker struck down Proposition 8 last month as a violation of gay Californians’ civil rights.

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

The state has until Sept. 11 to challenge Walker’s ruling. Both Brown and Schwarzenegger have said they don’t plan an appeal.

The coalition of conservative and religious groups that sponsored the ban has appealed the ruling by Walker. 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.

Twenty-seven members of the California Assembly sent Schwarzenegger a letter this week urging the governor to bring an appeal if Brown will not.

—  John Wright