The Washington Times - September 3, 2010, 10:58AM

One nagging question from the federal court battle over California’s Proposition 8, the traditional marriage law: Why was the task of defending Proposition 8 left to a group of private attorneys, instead of Attorney General Jerry Brown?

The answer: Because Mr. Brown refused to defend Proposition 8, even though part of the attorney general’s traditional job description is to defend state law from legal challenges — including laws with which they disagree.

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The Pacific Justice Institute decided to force Mr. Brown’s hand, asking a California appeals court to compel Mr. Brown and Gov. Arnold Schwarzenegger — another Proposition 8 opponent — to file a notice of appeal with the Ninth Circuit Court of Appeals.

That request was rejected Thursday, but institute president Brad Dacus said the group plans to file another petition, this time with the California Supreme Court, as early as Tuesday.

The appeals court, said Mr. Dacus, “just wasn’t comfortable telling the executive branch how to do its job.”

He’s betting that the state high court “might be more likely to take the bold leap to the other branch of government.”

A federal judge ruled Proposition 8 unconstitutional in August, touching off a round of appeals that may well end with the U.S. Supreme Court. In the meantime, gay marriages are on hold until at least December.