So, the anti-gay supporters of Prop. 8 went to state court to force the Governor and Attorney General to defend the case on appeal. They lost:
The state Supreme Court refused to come to the aid of California’s embattled ban on same-sex marriage Wednesday, denying a conservative group’s request to order Gov. Arnold Schwarzenegger and Attorney General Jerry Brown to appeal a federal judge’s ruling striking down the voter-approved measure.
The state officials’ decision not to argue in support of Proposition 8 has raised questions about whether anyone is legally qualified to defend it in court. The Pacific Justice Institute filed suit last week, arguing that the California Constitution requires Brown to defend the state’s laws.
A state appeals court dismissed the suit without a hearing, and the state’s high court denied review Wednesday without comment.
The pro-Prop. 8 forces are freaking. They may not have standing to appeal Judge Walker’s decision. In its order to the parties, the Ninth Circuit instructed the pro-Prop. 8 side to address standing:
In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing.
Last month, USC Con. Law Professor David Cruz wrote a post for us on the issue of standing. It’s very good and worth a read.