Judge rules California need not defend Prop 8

A California judge has thrown out the request of a pro-Prop 8 group that he order California Governor Arnold Schwarzenegger and Attorney General Jerry Brown to defend Proposition 8, which the two office holders have publicly said they would not do.

Apex news service reports:

The legal wrangles over Prop 8 in California took another turn on Wednesday when a California judge refused to grant a motion that was asking that Governor Arnold Schwarzenegger and AG Jerry Brown be forced to file an appeal against the ruling that overturned the state’s ban on same sex unions.

The 3rd District court gave no reason for their decision not to grant the motion, which was filed by the Pacific Justice Institute, a conservative legal organization.

The group does not intend to give up their fight though, saying that the next step is to take their case before California Supreme Court.

Law.com reports says the motion, called a “mandamus”, was something of a “hail Mary”:

There’s a high standard to win a writ of mandamus. And in this case, the Pacific Justice Institute, which filed the petition, is up against issues of executive branch discretion, the separation of powers doctrine and an ambiguous state statute regarding the attorney general’s obligation — or discretion — to defend the state in lawsuits, said UC Hastings College of the Law professor and appellate expert Rory Little.

“It’s a long shot,” he said.

The move was laughable to Jon Eisenberg, an Oakland appellate specialist, who offered that the lawyers behind it are “good” and “creative” but “can’t possibly expect it to succeed.”

However, he said the strategy of fight on every front — “throw ten piles of spaghetti at the wall and see if one sticks” — surely reflects how deeply and passionately the proponents believe in the cause.

h/t Religion Clause.

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