California governor Arnold Schwarzenegger and Attorney-General Jerry Brown will not be forced to defend the state’s ban on gay marriage.

The challenge was brought by a conservative legal group but a Sacramento judge at the 3rd District Court of Appeal rejected it.

The Pacific Justice Institute argued that Mr Schwarzenegger and Mr Brown had a duty to uphold state laws and said it will appeal to the California Supreme Court.

US District Judge Vaughn Walker ruled that the ban, known as Prop 8, was unconstitutional in August.

Gay marriages were to resume a week later but opponents successfully argued at the 9th District Court of Appeals that the ban should stay in place until they have appealed.

As state officials, Mr Schwarzenegger and Mr Brown are the legal defendants in the case but both have refused to support the ban, with Mr Brown calling it unconstitutional.

This leaves anti-gay marriage groups, who are ordinary citizens, in the unusual situation of defending the law.

Critics believe this may place their appeal on shaky ground as appeal court judges last month demanded that they must prove they have the legal standing to bring the case to court.

The main defenders of Proposition 8 were groups such as ProtectMarriage.com, which led the campaign to get the issue on the November 2008 ballot.

Around 18,000 gay couples married in 2008, before the ban came into power.

Further appeal proceedings against the lifting of the ban will take place on December 6th.

Experts expect the case will come before the Supreme Court in two years’ time.