SAN FRANCISCO – A conservative legal group called the Pacific Justice Institute has petitioned the Third Court of Appeals in Sacramento for an emergency order to compel the state to defend Proposition 8 in court.
The institute wants Gov. Arnold Schwarzenegger, a Republican, and Attorney General Jerry Brown, a Democrat, to defend California’s ban on gay marriage. Both politicians have declined to defend Prop. 8 after Chief U.S. District Judge Vaughn Walker ruled Aug. 4 that the voter-approved ban on same-sex marriage was unconstitutional.
Walker’s decision has been appealed to the Ninth U.S. Circuit Court of Appeals, which has given the state until Sept. 11 to challenge the ruling.
Legal experts have raised doubts about whether the appeal by Prop. 8 supporters has merit, since the state is the only institution that has authority to enforce marriage laws. The move by the Pacific Justice Institute is an attempt to force the issue.
The institute said it filed for the emergency order on behalf of Joshua Beckley, pastor of Ecclesia Christian Fellowship church in San Bernardino. The motion included a declaration of support from former U.S. Attorney General Edwin Meese III, a Republican who served under President Ronald Reagan. Meese also was legal advisor to Reagan when he was California’s governor.
The powerhouse legal team that successfully argued that Prop. 8 was unconstitutional did not seem alarmed by the move by the Pacific Justice Institute.
Ted Boutrous Jr., one of the legal team members, called the move “novel” and raised questions about the separation of powers issues. He said the state, like the federal government, mandates that the executive and judicial branches operate independently, so the institute’s petition sets up problematic conflicts of interest.
Equality California’s executive director, Geoff Kors, was more blunt.
“This is an outrageous attempt to try and force elected officials who have sworn to uphold the United States Constitution to defend a law that the Federal Court has found to be unconstitutional,” Kors said. It demonstrates their acknowledgement that the proponents of Proposition 8 lack standing to appeal, that the case should be dismissed and loving same-sex couples should be allowed to exercise their constitutional right to marry.”