By Susan Ferriss
Published: Thursday, Sep. 2, 2010 – 12:00 am | Page 3A
Proposition 8 supporters are ramping up political – and legal – pressure on Attorney General Jerry Brown and Gov. Arnold Schwarzenegger to defend California’s same-sex marriage ban in federal appeals court.
The Pacific Justice Institute, a conservative law group, petitioned the 3rd District Court of Appeal in Sacramento on Monday to compel Brown and the governor to defend the voter-approved measure.
On Wednesday, all 27 Republican state Assembly members released a letter they sent to the governor making similar arguments that Brown has a constitutional duty to defend the measure.
If Brown won’t act, the lawmakers said, Schwarzenegger should appeal a recent ruling by U.S. District Judge Vaughn Walker that Proposition 8 is unconstitutional.
“It does not matter whether … we believe it should or should not be the law of California,” the GOP letter says. “The people of the state of California themselves decided this issue on Nov. 4, 2008.”
Proposition 8 campaign organizers filed an appeal last month with the 9th U.S. Circuit Court of Appeals. If the state wants to act, it must do so by Sept. 11. Oral arguments are scheduled for early December.
Measure supporters say they’re worried that the court will find that organizers do not have standing to represent voters in the case.
Brown and Schwarzenegger have both said they will not defend the measure. In fact, both filed motions with Walker declaring that they thought same-sex marriages should proceed after Walker’s ruling.
Aaron McLear, the governor’s spokesman, said Wednesday: “The court will determine whether or not the intervenors (initiative authors) can appeal. That is not the governor’s decision.”
Schwarzenegger has praised Walker’s decision, saying it “affirms the full legal protections and safeguards I believe everyone deserves.”
Brown’s office said in a statement: “The attorney general does not believe that he can be forced to prosecute an appeal of a decision with which he agrees.”
The Pacific Justice Institute’s petition cites California state law and the state constitution to argue that Brown has a duty to defend state laws.
A declaration from former U.S. Attorney General Edwin Meese III argues that former Gov. Ronald Reagan believed he should defend all state laws.
McGeorge School of Law constitutional law expert Brian K. Landsberg read the petition and was skeptical.
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