Brown Won't Defend Prop 8

California Attorney General Jerry Brown took a stunning step late today, filing documents (long pdf) with the state Supreme Court opposing Proposition 8, the Nov. 4 ballot initiative that invalidated same-sex marriage in California.

“Proposition 8 must be invalidated,” Brown said in a prepared statement, “because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification.”

The 92-page brief was shocking in that the AG is normally obligated to follow the will of the people on ballot measures. Prop 8 passed with 52 percent of the popular vote. In taking his new position, Brown said opponents of Prop 8 were wrong that the measure was not an amendment, but rather a revision that required first passage by the state Legislature before being put to the voters.

More on the AG's argument after the jump.

“But the attorney general also believes,” Brown's office wrote, “that the initiative-amendment process does not encompass a power to abrogate fundamental constitutional rights without a compelling justification. He believes that Proposition 8 lacks such a justification as determined by the Supreme Court in the In re Marriage Cases and, therefore, deprives persons of basic liberty guaranteed” by the state Constitution.

Brown also made the point that the state Supreme Court in May determined that gays and lesbians were a suspect class and that the court’s strict scrutiny analysis is appropriate to consider when harmonizing the power of the initiative with the “inalienable” rights guaranteed in the state Constitution.

“The use of the initiative power to take away a legal right deemed by this court to be fundamental and from a group defined as a suspect classification,” he wrote, “is a matter of grave concern.”

Prop 8 proponents ProtectMarriage.com also filed their brief (pdf) today, arguing that the initiative was in no way an illegal revision, but represents the will of a clear majority of Californians.

“Petitioners’ challenge depends on characterizing Proposition 8 as a radical departure from the fundamental principles of the California Constitution,” the brief stated. “But that portrayal is wildly wrong. Proposition 8 is limited in nature and effect. It does nothing more than restore the definition of marriage to what it was and always had been under California law before June 16, 2008 — and to what the people had repeatedly willed that it be throughout California’s history.”

ProtectMarriage.com attorney Andrew Pugno could not be reached late today for comment on the AG’s office’s position. The organization also announced Friday that Pepperdine Law School Dean Kenneth Starr will argue its position before the state high court.

Gay-rights proponents reacted to the AG’s brief with caution.

San Francisco City Attorney Therese Stewart called the AG’s stand “an interesting take.” She added in an e-mail that “the state agrees with us that Prop 8 cannot stand. And the state is, this time, correct.”

Shannon Minter, legal director of the San Francisco-based National Center for Lesbian Rights, simply agreed.

Jennifer Pizer, staff attorney for the Los Angeles branch of the Lambda Legal Defense and Education Fund, was more effusive.

“It’s a detailed legal analysis that will take careful study,” she said, “but the bottom line is that the attorney general has concluded that Proposition 8 is not valid, and the administration does not disagree.

“Both the AG and the administration agree,” she added, “that the 18,000 marriages remain valid. We haven’t digested the AG’s analysis, but we heartily concur in the bottom line.”

—  Mike McKee

Comments

[Jess Yanez]

So the AG decides what or which cause or case he will defend or not defend when the State of California is challenged in court. Guess I need to read the job description. While I agree that the initiative should not have passed it did and the AG needs to do his job--whatever that is. . .me thinks his job is not to decide what a court ought to think; they have done that already.

[Scott Graham (Cal Law editor)]

Is anybody aware of another situation where the AG declined to defend a ballot measure?

[Daniel]

The attorney general took an oath to uphold the state and federal constitutions. Should the AG defend a proposition that he reasonably believes is unconstitutional?