SAN FRANCISCO -- A conservative legal group is trying to force Gov. Arnold Schwarzenegger and Attorney General Jerry Brown to defend California's gay marriage ban in court.

The Pacific Justice Institute petitioned the 3rd District Court of Appeal in Sacramento on Monday for an emergency order that would require the two officials to appeal a ruling that overturned Proposition 8.

Chief U.S. District Judge Vaughn Walker struck down the voter-approved measure as unconstitutional last month.

Its sponsors have appealed. But doubts have been raised about whether they have authority to do so because as ordinary citizens they are not responsible for enforcing marriage laws.

The state has until Sept. 11 to challenge Walker's ruling in the 9th U.S. Circuit Court of Appeals. Both Brown and Schwarzenegger, who also refused to support Proposition 8 in Walker's court, have said they do not plan to.

The institute is arguing that as the state's chief law enforcement officer, Brown does not have discretion to defend only laws with which he personally agrees.

And because the California Constitution gives the governor final say when he and the attorney general disagree on legal matters, Schwarzenegger must be compelled to file an appeal to preserve Proposition 8 as well, the group's lawsuit states.


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"To allow an elected official to trump the will of the people by mere inaction and the lack of fulfillment of their duty to do their job would be an egregious violation of public trust," Brad Dacus of the Pacific Legal Institute said Tuesday.

The institute brought its motion on behalf of Joshua Beckley, pastor of Ecclesia Christian Fellowship church in San Bernardino.

Brown has said both in legal filings and public statements that he has sworn to uphold the state and federal constitutions and therefore can not defend Proposition 8 because he thinks it is an unconstitutional violation of gay Californians' civil rights.

"The attorney general does not believe that he can be forced to prosecute an appeal of a decision with which he agrees," Brown spokeswoman Christine Gasparac said Tuesday.