CA Attorney General Asks Court to Overturn Proposition 8

Timothy Kincaid

December 20th, 2008

It is the duty of the state Attorney General, the very definition of his job, to represent the political actions of the state before the courts. Therefore it is very rare for an Attorney General to argue against the actions taken by the legislature or the voters of the state.

Yet that is exactly what Jerry Brown, Attorney General of the State of California, is doing. Brown has submitted a legal brief stating that the amendment to the State Constitution passed in November is itself unconstitutional (Sacramento Bee). This is particularly fascinating because Brown had earlier indicated that he would defend the proposition before the courts.

In a dramatic reversal, Brown filed a legal brief saying the measure that amended the California Constitution to limit marriage to a man and a woman is itself unconstitutional because it deprives a minority group of a fundamental right. Earlier, Brown had said he would defend the ballot measure against legal challenges from gay marriage supporters.

But Brown said he reached a different conclusion “upon further reflection and a deeper probing into all the aspects of our Constitution.”

“It became evident that the Article 1 provision guaranteeing basic liberty, which includes the right to marry, took precedence over the initiative,” he said in an interview Friday night. “Based on my duty to defend the law and the entire Constitution, I concluded the court should protect the right to marry even in the face of the 52 percent vote.”

This decision also may reveal political calculation. Brown wants to be re-elected Governor in 2010 (he served from 1975 to 1983) and may have taken that desire into consideration. If that played into his decision, it may suggest that Brown believes that the opposition to Prop 8 may hurt him irrevocably in the primary while not helping him in the general election.

Or perhaps he just couldn’t live with himself arguing that the freedoms and rights for all in the State of California have an asterisk when it comes to gays.

Ben in Oakland

December 20th, 2008

Sent to a bunch of newspapers today:

Dear Editor:

Ken Starr, Dean of Law at Pepperdine University, and staunch defender of Prop. 8, has filed a lawsuit to invalidate the legal marriages of gay and lesbian citizens. The ironies of Prop. 8 abound, not the least of which is an attack on the 18,000 marriages of committed, loving couples– mine included– in the name of somehow protecting someone else’s marriage.

It reminds me of Gen. Westmoreland’s claim that he destroyed a Vietnamese village in order to save it. Lucky villagers! Saved! Like them, I don’t feel saved, just attacked.

But it doesn’t stop there. Mr. Starr must surely know that using Prop. 8 to invalidate those legal marriages makes it an ex post facto law, something expressly forbidden by Article 1, Section 10 of the U.S. Constitution. But then, Mr. Starr also thinks that the State should prefer and enforce the beliefs of religious conservatives regarding homosexuality over those of others, both religious and not, who don’t share them. In his view, these beliefs, and not equality before the law, should determine the availability of the civil contract known as marriage to people those denominations consider especial sinners.

Perhaps Pepperdine should look at the quality of its School of Law, because these are the same people who were falsely claiming that my civil marriage is a threat to their freedoms of religion and speech. As any high school student could tell them, those two rights are also guaranteed by the U.S. Constitution, and are absolutely inviolate.

Kudos to Jerry Brown for having the courage to stand up and say that liberty, freedom of religion, and equality of all citizens before the law, are the values the State of California must defend, not the narrow religious and social agendas of a bare majority of the voters.

L. Junius Brutus

December 21st, 2008

His reasoning sounds like nonsense to me. I think that Proposition 8 will be upheld, unfortunately.

Dean P

December 22nd, 2008

The thing is, his argument is a bit funky. He says it’s not a revision, just an amendment, but then says it should be overturned anyway. I think his argument isn’t terribly strong.

So, the cynic in me worries that he’s playing both sides here. No matter who wins, he has the ability to say that he tried–“see, I said it wasn’t a revision!” and “see, I said it should be overturned.”

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