By Peter J. Smith

SAN FRANCISCO, September 10, 2010 ( – The California Supreme Court has turned down a request from attorneys to mandate that California’s governor and attorney general represent the state in the federal legal battle over Proposition 8.

Late Thursday, the California Supreme Court denied a petition filed by Pacific Justice Institute to require Governor Schwarzenegger and Attorney General Jerry Brown to defend Prop. 8. In August, Chief U.S. District Court Judge Vaughn Walker in San Francisco decided to overturn Proposition 8, the voter-approved state constitutional amendment defining marriage as between one man and one woman, on the basis that it violated the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution.

However, pro-family advocates are concerned that without the governor or attorney general representing the state, proponents of California’s constitutional amendment will lack standing at the federal appeals court to defend the law. Although named as litigants in the case, Perry v. Schwarzenegger, both Schwarzenegger and Brown declined to defend Prop. 8 in federal court, and instead left the defense up to the amendment’s original sponsors,

Lawyers with Pacific Justice Institute were hoping to head off the possibility that the 9th U.S. Circuit Court of Appeals might rule the interveners in the case, attorneys for ProtectMarriage, have no right to appeal under Article III if the U.S. Constitution, because they are not the named defendants in the case.

However, the state’s high court dismissed the Institute’s petition in two sentences, without offering a legal explanation, affirming the same decision handed down by a lower appeals court almost a week before.

On Wednesday, both the Governor and Attorney General had filed separate briefs to the court defending their decision not to defend the law.  The governor’s legal counsel Andrew Stroud told the state Supreme Court that Gov. Schwartzenegger, “like any litigant, has complete discretion over his own litigation strategy, including whether or not to appeal an order.”

However lawyers for PJI rejected that analogy, saying that California’s constitution required its executive officers to defend the state’s laws “without mental reservation.”

“The refusal of the Governor and Attorney general to defend Prop. 8 is not a legal strategy, it is an abdication of their duties as the legal representatives of the People of California,” asserted PJI president Brad Dacus. “They do not get to pick and choose which laws they will defend.”

PCJ legal counsel Kevin Snider in an op-ed argued that allowing the governor and the attorney general to decline to defend the laws of the state puts California’s Republican government on the brink of a constitutional crisis.

“The duty to defend peacefully enacted laws is at its zenith when the voters have amended their own constitution,” wrote Snider. “Should these elected members of the executive branch refuse to defend a constitutional amendment enacted in this manner, the Governor and the Attorney General will have seized an extraconstitutional power by creating what is tantamount to a constructive veto.”

“Whether or not the citizens of California realize it, the social contract that the people have made to govern themselves with is being breached. We are witnessing what is essentially a coup,” continued Snider.

The 9th Circuit Court has expedited review of Proposition 8, and a hearing is set for the week of December 6 in San Francisco. In the interim, the court has placed an injunction on Judge Walker’s order for same-sex “marriages” to commence in California.

Attorneys for are required by the federal appeals court to defend their right to intervene in the case under Article III.

The issue of standing may be resolved by the California November election if the incoming attorney general and governor are willing to defend Prop. 8.; but they would only take office in January and the case may be dismissed at that point. 

If the current interveners are determined by the court not to have standing, then same-sex “marriage” would be legal in California, and the issue would not go to the U.S. Supreme Court. Should it be accepted by the Supreme Court, the Court’s swing justice, Anthony Kennedy, would likely be the deciding vote on whether to uphold the ban or create a national right to same-sex “marriage.”

Read Kevin Snider’s op-ed “The Looming Constitutional Crisis”

Read National Review “The Case for Marriage” 

Read previous and related coverage by

Federal Appeals Court Intervenes in Prop. 8, Halts California Gay ‘Marriages’

Expert: Prop 8 Trial Based on False or Dubious Statements about Homosexuality

ADF & Liberty Counsel at Odds over Prop. 8 Trial

San Francisco Chronicle: “Open Secret” That Prop. 8 Judge is “Gay”