SACRAMENTO, Calif. (CBS/AP) — A California appellate court says state officials don’t have to enforce a voter-approved ban on gay marriage, setting up a likely Supreme Court fight over the issue.

The 3rd District Court of Appeal on Wednesday denied a conservative legal group’s request to force the officials to defend Proposition 8.

Presiding Justice Arthur Scotland did not explain why the appeals court turned down the request filed two days earlier by the Pacific Justice Institute.

The institute now plans to take the matter to the California Supreme Court, Chief Counsel Kevin Snider said Thursday.

“We are disappointed that the appellate court showed indecisiveness in trying to prevent a constitutional crisis,”

Snider said. “They didn’t want to deal with it.”

The institute maintains the attorney general and governor have the duty to uphold all laws, not just those with which they personally agree.

Chief U.S. District Judge Vaughn Walker — an openly-practicing homosexual —   struck down Proposition 8 as unconstitutional last month.

The measure approved by 52 percent of California voters in November 2008 amended the state Constitution to outlaw same-sex unions five months after the state Supreme Court legalized them.

The state has until Sept. 11 to challenge Walker’s ruling. Both California attorney general Jerry Brown and Governor Arnold Schwarzenegger have said they don’t plan an appeal.

The coalition of conservative and religious groups that sponsored the ban has appealed the ruling by Walker. But doubts have been raised about whether its members have authority to do so because as ordinary citizens they are not responsible for enforcing marriage laws.

Twenty-seven members of the California Assembly sent Schwarzenegger a letter this week urging the governor to bring an appeal if Brown will not.

(TM and © Copyright 2010 CBS Local Media, a division of CBS Radio Inc. and its relevant subsidiaries. CBS RADIO and EYE Logo TM and Copyright 2010 CBS Broadcasting Inc. Used under license. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. The Associated Press contributed to this report.)

Comments (6)
  1. Kristine Arai says:

    Judge Walker’s sexuality and whether he “practices” openly is irrelevant. Unconstitutional is unconstitutional.

  2. Animal Farm says:

    – George Orwell (1945)

  3. Rosenberg says:

    I am happy to hear that GAS (Governor Arnold Schwarznegger) is doing the right thing here and not listening to the religious “right” or the republican party..

  4. N Eich says:

    What about listening to the majority of the people of California?

  5. Phil says:

    And is Chief Council Kevin Snider openly heterosexual? Does this matter? Why make the judges sexual preference an issue and not that of the opposition? Just asking.

  6. SunnyGril says:

    the fact is the majority is being biggots, and voting something unconsitutional into law. Does not matter the judges sexuality.Not only gay lawmakers beleive that the Prop is wrong.

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