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Conservative legal group seeks to compel California to defend Prop 8 gay marriage ban

By LISA LEFF, Associated Press

SAN FRANCISCO -- A conservative legal group is trying to force Gov. Arnold Schwarzenegger and Attorney General Jerry Brown to defend California's gay marriage ban in court.

The Pacific Justice Institute petitioned the 3rd District Court of Appeal in Sacramento on Monday for an emergency order that would require the two officials to appeal a ruling that overturned Proposition 8.

Chief U.S. District Judge Vaughn Walker struck down the voter-approved measure as unconstitutional last month.

Its sponsors have appealed. But doubts have been raised about whether they have authority to do so because as ordinary citizens they are not responsible for enforcing marriage laws.

The state has until Sept. 11 to challenge Walker's ruling in the 9th U.S. Circuit Court of Appeals. Both Brown and Schwarzenegger, who also refused to support Proposition 8 in Walker's court, have said they do not plan to.

The institute is arguing that as the state's chief law enforcement officer, Brown does not have discretion to defend only laws with which he personally agrees.

And because the California Constitution gives the governor final say when he and the attorney general disagree on legal matters, Schwarzenegger must be compelled to file an appeal to preserve Proposition 8 as well, the group's lawsuit states.

"To allow an elected official to trump the will of the people by mere inaction and the lack of fulfillment of their duty to do their job would be an egregious violation of public trust," Pacific Legal Institute Brad Dacus said Tuesday.

The institute brought its motion on behalf of Joshua Beckley, pastor of Ecclesia Christian Fellowship church in San Bernardino, and included with it a declaration of support from former U.S. Attorney General Edwin Meese III.

Meese, who served one term as attorney general under President Ronald Reagan and Reagan's legal adviser when he was governor of California, said that Schwarzenegger and Brown's positions were at odds with his own experience.

"Governor Reagan never refused or declined to defend a state law or state constitutional provision, regardless of his own opposition or dislike for a challenged provision," he wrote. "As attorney general, I never refused or declined to defend a law on the basis that I disagreed with the law as a matter of policy."

Reagan's Justice Department did refuse to defend at least one federal policy, when Meese was serving as a presidential adviser but before he became attorney general. Government lawyers joined attorneys for an African immigrant whose bid for residency had been approved by the Immigration and Naturalization Service but overturned by Congress, arguing that such legislative vetoes were unconstitutional.

Brown has said both in legal filings and public statements that he has sworn to uphold the state and federal constitutions and therefore can not defend Proposition 8 because he thinks it is an unconstitutional violation of gay Californians' civil rights.

"The attorney general does not believe that he can be forced to prosecute an appeal of a decision with which he agrees," Brown spokeswoman Christine Gasparac said Tuesday.

In seeking to make the state file an appeal, Pacific Justice Institute is trying to address the possibility that the case might get short-circuited before the 9th Circuit can consider if Proposition 8 passes constitutional muster.

The appeals court has scheduled oral arguments for the second week in December. But both Walker and the lawyers who persuaded him to invalidate the gay marriage ban on behalf of two same-sex couples and the city of San Francisco have said that measure's backers may not have legal standing to ask the court to overturn Walker.

Theodore Boutrous Jr., a member of the legal team that represented the two couples, said it is unlikely the state court would order the governor and attorney general to take action because California, like the federal government, requires its executive and judicial branches to operate independently.

"It's certainly a novel idea," Boutrous said of the Pacific Justice Institute petition. "It seems like it would raise serious separation of powers issues, among other things. We will be interested to see how it plays out."

Loyola Law School, Los Angeles professor Rick Hasen, an election law expert, agreed the petition was a long-shot. He called the institute's arguments "very thin."

"We expect the attorney general to exercise discretion and not to defend a law that the attorney believes is unconstitutional," Hasen said. "What this is really about, and becomes clear from the petition, is the desire to get the AG to file a notice of appeal, which will solve any potential standing problem in the Ninth Circuit case."


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