Court won't force state to defend Prop. 8

(09-02) 16:04 PDT SACRAMENTO -- The outlook for the legal defense of Proposition 8, California's ban on same-sex marriage, grew cloudier Thursday as a state appellate court refused to order Gov. Arnold Schwarzenegger and Attorney General Jerry Brown to appeal a federal judge's ruling overturning the measure.

The Third District Court of Appeal in Sacramento dismissed without comment a lawsuit seeking to compel the state to come to the initiative's defense. The suit was filed Monday by the conservative Pacific Justice Institute on behalf of a Los Angeles-area minister.

The institute said it would file an immediate appeal to the state Supreme Court in hopes of getting a reversal by Sept. 11, the deadline for state action in the Prop. 8 case.

"When the people peacefully enact a constitutional provision and the attorney general refuses to give them meaningful review in the federal judiciary, then you have a veto by the executive branch," said the institute's lawyer, Kevin Snider. "That is a constitutional crisis, usurping the power of the people."

Coalition's appeal

Brown opposed Prop. 8, and both he and Schwarzenegger refused to defend it in federal court and said they would not appeal Chief U.S. District Judge Vaughn Walker's ruling Aug. 4 striking it down.

After presiding over a trial in his San Francisco court, Walker said the 2008 ballot measure lacked any rational justification and denied equal rights to gays and lesbians who wanted to marry their chosen partners.

The Prop. 8 campaign committee, a conservative religious coalition called Protect Marriage, defended the initiative before Walker and has appealed his ruling to the Ninth U.S. Circuit Court of Appeals in San Francisco.

But Walker questioned whether the sponsors of an initiative have legal standing - the right to represent the state's interests in defending one of its laws - and said the U.S. Supreme Court expressed similar doubts in a 1997 ruling about an Arizona ballot measure.

The high court said in that case that state officials are ordinarily the only ones who can defend state laws, and noted that initiative sponsors are not elected representatives.

If Prop. 8's supporters are barred from defending it, the appeals court could uphold Walker's ruling on procedural grounds without deciding whether the initiative was constitutional. Same-sex couples would then regain the right to marry, which they won in a May 2008 state Supreme Court ruling that the voters repealed less than six months later.

Precedent for stepping aside

The federal appeals court will hear the Prop. 8 case in December. It has asked for arguments on the sponsors' legal standing and on the ballot measure's constitutionality.

In the past, attorneys general from both parties have occasionally declined to defend California laws they considered unconstitutional. One such case involved a 1964 initiative that allowed racial discrimination in housing, a law that eventually was overturned by the U.S. Supreme Court.

The Pacific Justice Institute suit argued that Brown's refusal to appeal Walker's ruling violated a state law that says the attorney general "shall prosecute or defend" all cases involving the state or any of its officials.

E-mail Bob Egelko at begelko@sfchronicle.com.

This article appeared on page C - 1 of the San Francisco Chronicle