44014, LOS ANGELES, CALIFORNIA - Thursday August 26, 2010. Arnold Schwarzenegger, the 38th Governor of California, is spotted walking back to his convertible after having breakfast at Le Pain Quotidien in Brentwood. Arnold, who could be seen snacking on a treat, wore a white button up, blue trousers, a silver wallet chain and a large wrist watch. Photograph: Pedro Andrade/Kevin Perkins,  PacificCoastNews.com   + 1

With a court deadline looming in just days, California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown have filed court documents to fight demands from the Pacific Justice Institute that the state defend a constitutional amendment defining marriage as being between one man and one woman only.

Conservative organizations led by the Pacific Justice Institute are asking the state Supreme Court to force Brown or Schwarzenegger to appeal a federal judge’s decision declaring that the state’s legal definition of marriage is unconstitutional.

Brown and Schwarzenegger consistently have refused to defend the law because they hold personal disagreements with Proposition 8, the 2008 ballot initiative that amended the California constitution to define marriage.

“The California constitution has no ‘if you like it’ provision,” Pacific Justice Institute President Brad Dacus told WND. “We have filed a writ asking the state Supreme Court to order the attorney general and governor to fulfill their job requirements pursuant to the state constitution, which specifically requires the attorney general to defend the laws of California. State statute uses the word ‘shall,’ not ‘may.'”

Proposition 8 was passed by voters in 2008. In an Aug. 4 decision, Judge Vaughan Walker, whose homosexuality has been reported, declared it violates the rights of homosexuals under the federal Constitution. Walker’s decision was “entered” on Aug. 12, and the state has 30 days, until Sept. 11, to file a notice of appeal.

Conservative groups are eager to defend Proposition 8 before the 9th U.S. Circuit Court of Appeals, but their legal standing to mount the defense has been questioned.

Though an organization called ProtectMarriage.com conducted the defense of the initial suit, Perry v. Schwarzenegger, Schwarzenegger officially was the defendant.

“Judge Walker has said that only the attorney general and governor have standing to appeal,” said PJI attorney Matt McReynolds. While McReynolds said he believes that ProtectMarriage.com does have standing, “The governor and attorney general have a duty to file their appeal to ensure some party before the court has standing.”

If Brown and Schwarzenegger fail to defend Proposition 8, conservative groups will attempt to mount their own defense, but there is no guarantee that their defense will be heard in court. The 9th Circuit will hold a hearing on Dec. 6 to determine whether anybody apart from the attorney general, the defendant in the suit attacking Proposition 8, can mount a defense.

A Sept. 7 Los Angeles Times editorial asserted that “California’s top public lawyer and its chief executive have an obligation to defend the laws of the state whether they like them or not – and that should include the ban on same-sex marriage.”

Karen England of the conservative Capitol Resource Institute commented, “Wow, that is huge! The L.A. Times is very liberal, but they recognize that [the attorney general and governor] shouldn’t have the authority to do this.”

Randy Thomasson, president of SaveCalifornia.com, an ally of the Pacific Justice Institute, was angry about the reluctance of Schwarzenegger and Brown to stand up for the people of California and about the reluctance of California courts to compel the elected officials to act.

He wrote to WND, “A just judge would not pretend that the California Secretary of State hasn’t reported that 7,001,084 – 52.3 percent of the electorate – approved Proposition 8 nearly two years ago. A just judge would not ignore the crisp pages of Article 1, Section 7.5 of the California Constitution, which reads, ‘Only marriage between a man and a woman is valid or recognized in California.’ A just judge would actively seek a substitute defendant if a state attorney general shirks his duty, as in the case of Jerry Brown. A just judge would not pretend that the vote of the people somehow cannot be defended even though there’s a sea of people clamoring to step in and defend it.”

Walker’s decision had ignored the terse warning contained in state Supreme Court Justice Marvin Baxter’s dissenting opinion in the 2008 state case on same-sex “marriage.” Baxter warned of the “legal jujitsu” required to establish same-sex “marriage” by court order just a few months before California voters passed Proposition 8 and amended the constitution to limit marriage to one man and one woman.

“The bans on incestuous and polygamous marriages are ancient and deeprooted, and, as the majority suggests, they are supported by strong considerations of social policy,” Baxter warned in his dissent. “Our society abhors such relationships, and the notion that our laws could not forever prohibit them seems preposterous. Yet here, the majority overturns, in abrupt fashion, an initiative statute confirming the equally deeprooted assumption that marriage is a union of partners of the opposite sex. The majority does so by relying on its own assessment of contemporary community values, and by inserting in our Constitution an expanded definition of the right to marry that contravenes express statutory law.

“Who can say that, in 10, 15 or 20 years, an activist court might not rely on the majority’s analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified?” Baxter wrote. That state court decision was overturned by voters a few months later.

According to Staff Counsel Jim Campbell of the Alliance Defense Fund, one of the organizations arguing on behalf of traditional marriage advocate ProtectMarriage.com, the case really has just begun with Walker’s ruling.

Charles Cooper, the lead counsel for ProtectMarriage.com, has said, “The decision whether to redefine marriage is for the people themselves to make, not a single district court judge, especially without appellate scrutiny.”

The ADF noted some of Walker’s far-reaching conclusions that opined marriage could not be limited to one man and one woman:

  • “Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.”

  • “Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.”
  • “The gender of a child’s parent is not a factor in a child’s adjustment.”
  • “The evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes.”
  • “Gender no longer forms an essential part of marriage; marriage under law is a union of equals.”
  • “Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples.”

Liberty Counsel has called the ruling “outrageous.”

“This is a classic example of radical individualism and judicial activism. Judge Walker obviously has not learned the lesson of 2008, when the California Supreme Court refused to stay its decision on marriage. That decision was reversed in short order, but it caused a huge disruption,” said chief Mathew Staver.

The American Family Association has launched an action alert to its several million supporters calling for the impeachment of Walker.

The alert asks supporters to contact their members of Congress and demand his removal.

“What you have here is a federal judge using the power of his position to legitimize what is sexually aberrant behavior,” Bryan Fischer, an analyst for the organization, told WND. “He’s trampling on the will of 7 million voters in California. It’s just a gross breach of his judicial responsibility.

“We think of it as an expression of judicial tyranny, judicial activism on steroids,” he said.

The organization’s action alert offers to constituents an option to track down their representatives in Washington and contact them directly on the issue.

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