Calif. High Court Won’t|Order Prop 8 Appeal

SAN FRANCISCO (CN) - The California Supreme Court will not order the state's top officials to defend Proposition 8, a statewide gay marriage ban declared unconstitutional last month by a federal judge.

The justices on Wednesday upheld an appeals court's rejection of a Sacramento-based conservative legal group's petition to force Gov. Arnold Schwarzenegger and Attorney General Jerry Brown to appeal the landmark ruling by Chief U.S. District Judge Vaughn Walker.

While neither court has offered an official explanation for rejecting the petition, University of San Francisco law professor Julie Nice said she was "not at all surprised" by the denial, calling it "a no-brainer." She said the courts' lack of explanation most likely meant, "We don't have to explain ourselves because it's probably pretty obvious."

"Basically there is no constitutional duty for the executive officials to make any particular choice about how they execute the law," Nice said.

Because Prop 8 was already ruled unconstitutional in 2008, an argument Brown stated in his letter to the Supreme Court, neither official has abused his discretion by refusing to defend it, Nice said.

"How they execute the laws is in their discretion," she said. "So there would be no right to a mandamus. If our very own California Supreme Court has already said Prop 8 is unconstitutional you would be hard pressed to say they abused their discretion."

Nice pointed to many historical issues on which state officials refused to defend voter-backed laws they believed were unconstitutional, including a voter-approved initiative to overturn state protections for racial minorities against discrimination in housing.

Both Brown and Schwarzenegger sent letters Wednesday to the state Supreme Court, asking the justices to deny the Pacific Justice Institute's (PJI) petition. A few hours after Walker's ruling on Aug. 4, Brown said he would not appeal, because "Proposition 8 violates the equal protection guarantee of the 14th Amendment of the United States Constitution by taking away the right of same-sex couples to marry, without a sufficient governmental interest."

PJI President Brad Dacus acknowledged the "unusual" nature of a high court making a mandate on a government official.

"We knew this was not an easy undertaking, but thought because of the enormity of what was at stake, maintaining the trust of the voters, that they would deem this to be one of those exceptions," he said. "Now we're going to have to wait and see if this results in the voice of the people being completely exterminated."

He added that the courts' refusal to order Schwarzenegger and Brown to appeal "leaves open an issue of standing that would have been quickly resolved."

Dacus said his group's petition did not ask that Schwarzenegger and Brown defend Prop. 8 in court, but only requested that one of them file an appeal.

"Their inactivity may result in the end not in prop 8 being struck down the voice of the people being struck out but also a total reinterpretation of the 14th amendment, which are both very substantial legal matters," he said.

Despite the denial, Nice said she thinks PJI's petition was smart political strategy for the backers of Prop 8.

"They've given us all a new news story: See how the voters' will is being thwarted," she said.

But Dacus said it was not such a strategic move for the governor.

"Strategy is when you show up to the game with your playbook. When you don't show up at all and leave your team on the field that is not strategy that is your forfeiture of your responsibilities," he said.

Brown's refusal to appeal, Dacus said, was "just as shameful. I think it was a desperate attempt for political purposes to stay out and avoid the controversial question."

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