Attorney General Jerry Brown has a simple reason for last week’s surprising decision to seek the invalidation of Proposition 8: It was the right thing to do and was compelled by his reading of the law.
“This goes to the core of the job,” Brown said in a brief telephone interview with Legal Pad on Tuesday afternoon. “And this is what I think makes sense.”
Normally, the AG steps up to defend measures passed by the voters, but Brown said that in good conscience he couldn’t do that with Prop 8, which removed the right to marriage from gay couples less than six months after the California Supreme Court affirmed it.
The man conservatives derisively dubbed “Gov. Moonbeam” during his gubernatorial years of 1974-82 said he gave some thought to Prop 8 opponents’ arguments about the measure being a revision rather than an amendment to the state Constitution. But then he decided that really didn’t matter or get to the heart of the issue.
In ruling favorably for same-sex marriage in May, Brown said, the California Supreme Court “crafted a broader rationale than any other court in the country” by finding that gays and lesbians constitute a suspect class, that marriage is a fundamental human right and that same-sex couples are entitled to enjoy that right.
Brown said he came to the conclusion that “the fundamental rights that the court found in the marriage cases cannot be simply swept aside without a demonstrated compelling interest. And the court had already found there was no compelling interest in denying gays the right to marry.”
He said he believes that legal experts who think his position has no chance haven’t read the high court’s ruling in In re Marriage Cases, 43 Cal.4th 757. “There are some fundamental principles that America is based on,” he said.
The AG admitted there were even some of his staff attorneys who didn’t agree with the direction he decided to take. “There was debate,” he said. “But I’m not going to give you a play by play.”
Some of his staff, Brown said, read the issue “more narrowly” and wanted to focus on the revision vs. amendment argument. Brown, however, said he felt it was best to lay out his broader argument and let the court sort things out.
“The court is the arbiter of what the Constitution means and how conflicts should be reconciled,” he said. “This is a fundamental right and I should give the court the benefit of my thinking.”
“A judge will think, ‘What seems right? What’s the fair thing to do? And what makes sense?’” Brown said. “And sometimes that’s an intuitive process as much as a logical process.”
The AG admitted he’s gotten calls from people who admired his position and those who hated it. “Probably more didn’t like it,” he added, “but that’s not really the point.”
The California Supreme Court, he said, found that the right to marriage is “deeply embedded” in the state Constitution and that marriage is open to same-sex couples.
“Based on that,” he said, “I find it logical that the rights will be defended,” adding moments later that “the proper course is to strike down Prop 8.”
— Mike McKee
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