Court Won't Force Prop. 8 Appeal

By Advocate.com Editors

Originally published on Advocate.com September 08 2010 2:45 PM ET

The California supreme court Wednesday rejected a last-ditch attempt by Proposition 8 backers to force an appeal by state officials in the high-profile federal case.

Justices did not explain their order in the matter, the Associated Press reports

The ruling comes one week after a conservative legal group petitioned a California appeals court to require Gov. Arnold Schwarzenegger
to appeal the case, Perry v. Schwarzenegger. But the court subsequently
denied the petition filed by the Pacific Justice Institute on
behalf of Joshua Beckley, a senior
pastor at Ecclesia Christian Fellowship in San Bernardino.

Pacific
Justice had asked in its petition that Schwarzenegger and state attorney general Jerry Brown, the original named defendants in the Prop. 8 suit,
formally file an appeal notice of Judge Vaughn Walker’s
decision before a September 11 deadline.

In August, Walker ruled the ballot measure unconstitutional, writing that it "fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license."

With the California supreme court's refusal to order an appeal by the state, Prop. 8 supporters who intervened in the case after Schwarzenegger and Brown declined to do so will be tasked with defending Prop. 8 on appeal before the U.S. court of appeals for the ninth circuit in December.

Their standing to do so remains in question: A three-judge panel last month ordered that Prop. 8 proponents include in their briefs to the court "a discussion of why this appeal should not be dismissed for lack of [standing]."

Earlier on Wednesday, Karen Ocamb of LGBT POV reported that Schwarzenegger and Brown were ordered to offer briefs to the high court explaining why they have not filed an appeal in the case. "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," Brown's staff wrote.

Kevin Snider, chief counsel for Pacific Justice Institute, said that Brown and Schwarzenegger's stance denies voters the right “to a
fair and meaningful review of Prop. 8 in the appellate courts."

But in explaining his position, Brown told The Advocate last week that the state supreme court's pre-Prop.8 opinion granting marriage rights to same-sex couples in 2008 weighed heavily on his decision not to defend the ballot measure in court.

"Once our own constitutional body determined that that was a fundamental
right, even though the people passed Proposition 8, I felt that the
Fourteenth Amendment is the protector of fundamental rights," Brown said. "And our
courts had already defined that, that it was a reasonable thing to do —
to look to the Fourteenth Amendment to uphold what our own court had
found before Prop. 8."

Read the full LGBT POV article here