California Governor Arnold Schwarzenegger remained resolute Wednesday to not appeal the ruling that determined the state marriage definition – between one man and one woman – unconstitutional.
In a brief to the California Supreme Court, the governor's lawyer, Andrew Stroud, said Schwarzenegger has "complete discretion over his own litigation strategy, including whether or not to appeal an order," according to The Associated Press.
If the state's Supreme Court agrees with the governor, then it likely will be harder for supporters of Proposition 8 – a voter-approved amendment defining marriage as between a man and a woman – to appeal Judge Vaughn Walker's ruling. Last month, Walker struck down Prop. 8, saying it puts unconstitutional burdens on the fundamental right to marry and "creates an irrational classification on the basis of sexual orientation."
Walker and opponents of Prop. 8 have raised doubts on whether ordinary citizens who support the measure have legal standing to appeal the case when California's governor and attorney general refuse to defend the same-sex marriage ban.
In response, conservative Pacific Justice Institute filed a suit Aug. 30 on behalf of Joshua Beckley, a pastor in San Bernardino, to try to force Schwarzenegger and Attorney General Jerry Brown to defend Prop. 8 in the appeals case.
The Third District Court of Appeals dismissed the suit last Thursday, which led PJI to immediately appeal to the California Supreme Court.
The Supreme Court ordered the state's governor and attorney general to file a response to PJI's petition by Wednesday 9 a.m., with a reply from PJI by noon the same day.
"We are pleased that the California Supreme Court is weighing this case carefully. We believe that no less than the future of citizen initiatives in California is at stake," said PJI President Brad Dacus, in a statement Wednesday. "If the Governor and Attorney General can defeat any voter-approved initiative simply by failing to show up in court to perform their duties of defending state law, their powers have been vastly expanded beyond what the California Constitution sets forth."
PJI argues that Brown, the state's top law enforcement officer, does not have the right to only defend laws he personally agrees with. Kevin Snider, PJI chief Counsel, in the written response filed Wednesday with the Supreme Court, argues that the attorney general's responsibility is to "prosecute or defend all causes to which the state or any state officer is a party."
"Refusing to defend a constitutional provision is an abdication of his duties and cannot be squared with the plain meaning of the code," he said, according to AP.
Schwarzenegger and Brown were named defendants in the original case, but did not defend Prop. 8 in the proceedings to date.
The Supreme Court is expected to make a decision by the end of the week to meet the deadline for the state to appeal Walker's ruling.
The Ninth U.S. Circuit Court of Appeals, which has also raised questions about Prop. 8 supporters' legal standing, is scheduled to hear oral arguments in December.