The California Attorney General, Jerry Brown, said last month that he would defend the will of the people regarding Prop 8 with these words:
“The Attorney General’s role is to defend California law, and I will do so,”
“I will defend in court the marriages contracted during the time that same-sex marriage was the law of California. I will also defend the proposition as enacted by the people of California.”
But he flip-flopped, not surprisingly:
California Atty. Gen. Jerry Brown asked the state Supreme Court on Friday to invalidate the voter-approved ban on gay marriage, declaring that “the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification.”
Brown’s argument on Proposition 8, contained in an 111-page brief filed at the last possible moment before the court’s deadline, surprised many legal experts. The attorney general has a legal duty to uphold the state’s laws as long as there are reasonable grounds to do so. Last month, Brown said he planned to “defend the proposition as enacted by the people of California.”
But in his filing, Brown, who personally supports same-sex marriage, offered a novel legal theory to back his argument that the measure should be invalidated.
The California Constitution protects certain rights as “inalienable,” Brown wrote. Those include a right to liberty and to privacy, which the courts have said includes a person’s right to marry.
The issue before the court “presents a conflict between the constitutional power of the voters to amend the Constitution, on the one hand, and the Constitution’s Declaration of Rights, on the other,” Brown wrote.
The issue “is whether rights secured under the state Constitution’s safeguard of liberty as an ‘inalienable’ right may intentionally be withdrawn from a class of persons by an initiative amendment.”
So much for the will of the people.
But fear not, Ken Starr is in the house:
Kenneth W. Starr, the former U.S. Solicitor General who led the inquiry into President Bill Clinton’s affair with Monica L. Lewinsky, will argue the case in favor of upholding a ban on gay marriage before the California Supreme Court.
Starr was today named lead counsel for the official proponents of Proposition 8. This afternoon, the group filed court briefs defending the legality of the proposition, which was approved by 52% of California voters last month throwing into question thousands of marriages performed during the five months the practice was legal in the state.
And Gabriel Malor at Ace of Spades HQ has a ton of respect for the man:
I can say from personal experience that their case is in good hands. Dean Starr is one of the most impressive advocates I’ve ever had the chance to watch in action. Each word of his oral arguments is chosen with care and his written work comes from an earlier era, when gentlemen (and a few gentleladies) would come before the Bar to respectfully disagree. Seriously, his decisions as a D.C. Circuit judge, which our law student readers may have seen in their first-year case books or perhaps an Admin law class, are like stepping in the way-back machine (in a good way).
Gabriel also goes into detail about the two arguments and why he believes the argument to overturn Prop 8 is completely wrong:
First and most persuasive of the theories, simply because the law in this area is so ill-defined, is the argument that Prop 8 is a “revision” rather than an “amendment” to the California constitution. For reasons passing understanding, the California Constitution makes a distinction between the two without ever defining the difference. Revisions must be passed by the legislature, whereas amendments can be passed by a simple majority in a ballot proposition. The idea is that if Prop 8 is actually a revision, it must be invalid since it did not pass through the legislature. This is what the French call: le bullshit.
The other argument recognizes that Prop 8 as an amendment stands on equal ground with the state constitution. They are challenging the amendment as a violation of the federal Constitution. Under the jurisprudence that has over the years grown up around Fourteenth Amendment guarantee of equal protection, courts apply a stricter theory against states which enact laws discriminating against gays than is typically applied to laws which discriminate against unprotected minorities. Lawyers or law student readers may know this as the “rational basis plus” test or the “animus” test of Romer v. Evans. The idea is that federal law forbids laws which are “inexplicable by anything but animus.” The law in question in Romer prevented any city, town or county in the state from taking any legislative, executive, or judicial action to protect gays from discrimination on the basis of their sexual orientation.
Even under the broadest understanding of the animus test, Prop 8 is not explicable only as animus directed against gays (although the Prop 8 campaign’s shady commercials about gays seeking to indoctrinate your children belie this argument). Prop 8 is explained as promoting heterosexual families, a “public good.” Under the test it does not matter why a legislature (or, in this case, voters) chose to pass a law, so long as some “hypothetically rational” excuse exists for it. Here, it does and is explicable as something other than animus.
What do you think would have been the response from the left on this if the vote had gone the other way and the Yes on Prop 8 folks tried to take it to court?
“The people have spoken! Get over it!”
Either way, only in California would you have the AG attempt to declare that the will of the California Supreme Court is superior to that of the people in this state. Yup, unelected judges should declare a certain class of people to be a protected class and that their behavior is a “fundamental right” which can never be amended.
Basically, a portion of the California Constitution is “unconstitutional.”
Only in California man…
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Brown wants to run for Governor again, I think. He is looking to go up against SF Mayor Gavin Newsom in the primary. It’s political calculus, which, I think, will hurt him in the general election.
I really don’t like the way that this whole same sex “marriage” thing is being presented to the public. It’s being portrayed as a major civil rights issue, which it’s not. It’s a battle over semantics. The gay/lesbian community isn’t satified with having equal rights and responsibilities under the law for civil unions. They demand official government recognition of the term “marriage” to describe a relationship to which any two people commit, regardless of gender. There is no discrimination in granting equal rights, but calling it by another name.
I hate the way that Rick Warren is being slimed by the gay/lesbian community. There is a charge that he “compared gay marriage with incest and pedophilia.” This is qrotesquely unfair. They make it sound as if he is preaching sermons to that effect. In point of fact, the comparison wasn’t even Warren’s. He was being interviewed and asked questions very rapidly, and he was very careful to state that he didn’t condemn homosexuality and that he wasn’t opposed to civil unions and equal rights under the law. He stated that he had good relationships and friendships with gays/lesbians, and he reminded people that he’d contributed literally millions of dollars for AIDS charities. But then he was sandbagged with a “push” question, regarding marriage laws. He was asked, so you’d (in the context of marriage laws) include (prohibitions against) same sex marriage, along with incest and pedophilia (and things like that). And Warren said, yes, definitely, meaning only that he’d exclude same sex couples from having formal state recognition as “marriage,” among the many other types of relationships which are also excluded.
But you read the blogs and listen to the interviews, and they are all saying that “Warren compares same sex marriage with incest and pedophilia,” in an attempt to make him appear to be an extreme bigot. It is absolutely sickening to me, the way that the language of the civil rights movement is being distorted in the pursuit of a trivial objective, which is what semantic term should be applied to describe a same sex “union.” It’s more sickening to me in the way good people, like Warren, are being slimed in the pursuit of this trivial (and, I believe, unworthy) objective.
Equal rights? Yes. Equal protection under the law? Yes. Calling a cat a dog? And threatening the long term viability of dogs, in the process. Uh-uh.
– Larry Weisenthal/Huntington Beach CA
The hypocrisy exhibited by the left is always breathtaking. Then, it is not possible to BE a leftist without being a hypocrite. And isn’t it remarkable that the Founders notions of inalienable rights–namely, life, liberty and the pursuit of happiness–have suddenly met with the requisite leftist process of redefinition to fit the all important agenda. Not surprisingly, life is gone altogether. Liberty is still given a grudging nod by our superiors. That is, we knuckle-draggers are free to do what we are told is best for us. And now privacy has become an inalienable right. Gee. I wonder how that became so all fired important? Unfortunately it doesn’t appear that voting has much of a future in California. At least not until the people get it right.
Actually, I did hear Warren compare gays with men who take mulitple wives and old men who take young girls, so that’s not spin. But the larger point is good: The left has gone crazy demonizing traditionalists altogether. Warren’s being used. Obama will score points among not-too-smart moderates, and the left will be able to hammer the gay rights issue all the way to Jan. 20.
This is something I’ve written about all month. Jerry Brown had no intention of upholding the will of the voters. All of this is a leftist scam. It’s sick, but that the nature of the system we have today under the Democratic-nihilist-left. Makes me ashamed of my fellow countrymen, especially with our soldiers out fighting and dying for freedom back home.
I’ve looked for this, but can’t find it. Do you have a source? Thanks, – Larry W
Larry, FOX has been running a clip of Warren making the remarks, but it’s a leap to say he is comparing gay marriage to incest or pedophilia, if that’s what they are judging the remarks by. He’s just saying he doesn’t agree with any type of marriage other than between a man and woman. My impression of the comment is that he is saying to the gay and lesbian community that his opinion is not based on predjudice toward them.
FOX does posts some of their clips at their site, you may find it there.
There should be a presumption that the will of the voters is constitutional rather than this lefties presumption of the opposite.
THE TERMINATOR OUGHT TO FIRE BROWN….BUT HE WON’T