There is a welcome update to Perry v Schwarzenegger, the federal challenge to Proposition 8. Last week, the 3rd District Court of Appeals rejected a motion to compel Gov. Arnold Schwarzenegger and Attorney General Jerry Brown to defend Proposition 8 in court. That motion was filed by the Pacific Justice Institute, the Sacramento-based social conservative legal group.
The California Supreme Court has also rejected their motion, reports the AP.
The court did not explain why it rejected the emergency petition filed by the Pacific Justice Institute. The institute had argued that the state attorney general and governor were required to uphold all laws, including initiatives passed by voters. Earlier Wednesday, lawyers for state Attorney General Jerry Brown and Schwarzenegger filed letters with the court maintaining state officers have authority to choose which laws they challenge or defend in court. Both men have declined to appeal Chief U.S. District Judge Vaughn Walker's Aug. 4 ruling that found the ban, known as Proposition 8, violated gay Californians' civil rights. "The governor, like any litigant, has complete discretion over his own litigation strategy, including whether or not to appeal an order," counsel Andrew Stroud wrote for Schwarzenegger. "Here, the governor exercised his discretion and decided not to file an appeal."
Chief U.S. District Judge Vaughn Walker, who declared the initiative unconstitutional August 4 in a landmark ruling, has suggested that only the state has "standing" to defend the law. The coalition of social conservative and religious groups that sponsored Prop 8 have appealed Walker's ruling to the 9th U.S. Circuit Court of Appeals. The court also asked Prop 8's sponsors to explain why they have standing to appeal Walker's decision if state officials refuse to do so. The 9th Circuit has said that is one of the issues it will decide when oral arguments are heard in early December.