This factor is the key to whether or not this case goes to the U.S. Supreme Court. The Prop 8 proponents, who defended the discriminatory initiative, are not government officials and as private citizens are not charged with upholding or enforcing the law and, therefore, may not have the legal standing to file an appeal to Judge Vaughn Walker's July ruling that overturned the voter initiative.
If there is no appeal, then same-sex marriage remains legal in California, but the ruling stays local. Some elements of the anti-equality side have admitted that it may be worth sacrificing California in order to protect opposite marriage in the remaining 45 states.
Now a conservative California legal group, The Pacific Justice Institute, is suing to force the Governator and second-generation Attorney General Brown to force them to defend Prop 8, on the basis that they have the sworn duty to uphold the law, regardless of their personal beliefs. If they succeed, which legal experts say is unlikely, the issue of standing will be a moot point and the case can proceed through the appeals process.
The Associated Press reports via the San Jose Mercury News:
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.
"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," Pacific Legal Institute Brad Dacus said Tuesday. The institute brought its motion on behalf of Joshua Beckley, pastor of Ecclesia Christian Fellowship church in San Bernardino, and included with it a declaration of support from former U.S. Attorney General Edwin Meese III.