As the year winds down, I’d like to note what I consider to be the most politically courageous act of 2008: Attorney General Jerry Brown’s decision to reverse his position and urge the California Supreme Court to overturn Prop. 8.
This was a deeply principled decision that went against Brown’s political self-interest considering the fact that he’s planning to run governor in a state where a majority has approved Prop. 8. And that political danger was exacerbated by Brown’s post-election statement saying he would defend Prop. 8, as attorneys general are generally required to do, opening him up to the dreaded flip-flopper label.
But his new position is consistent with important constitutional principles (as I outlined in the Guardian almost a month before Brown adopted his new stance) and well-worth taking a gamble to do what’s right, the kind of act that is all too rare in modern American politics.
We’ve seen lots of different Jerry Browns through the years, from Governor Moonbeam to the We The People presidential populist to the tough-on-criminals, easy-on-developers Oakland mayor. Perhaps this act heralds Jerry Brown as the kind of governor California desperately needs right now: someone willing to tell the people “no,” that we can’t have everything we want, that some sacrifice and selflessness and tolerance are needed, that this nation was founded on principles more important than majority rule.
The state attorney general, who had earlier vowed to defend Prop. 8, offers a novel legal theory for why it should be overturned. The action surprises some legal experts.
Reporting from San Francisco and Los Angeles — 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.”
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.”
Voters are allowed to amend other parts of the Constitution by majority vote, but to use the ballot box to take away an “inalienable” right would establish a “tyranny of the majority,” which the Constitution was designed, in part, to prevent, he wrote.
In an interview, Brown said he had developed his theory after weeks of consultation with the top lawyers in his office. “This analysis was not evident on the morning after the election,” he said.
Opponents of gay marriage, who also filed arguments with the court Friday, offered a sharply differing view of the case.
The brief, filed by the Protect Marriage coalition, told the justices that they should uphold the proposition, which voters approved 52% to 48% on Nov. 4 after one of the most expensive and emotional campaigns in state history.
The law “commands judges — as servants of the people — to bow to the will of those whom they serve — even if the substantive result of what the people have wrought in constitution-amending is deemed unenlightened,” they argued.
In an interview, Andy Pugno, the lawyer for Protect Marriage, called Brown’s argument “an astonishing theory.” He added that he was “disappointed to see the attorney general fail to defend the will of the voters as the law instructs him to.”
The two briefs also disagreed about the fate of the estimated 18,000 same-sex marriages performed before the election.
Brown argued that Proposition 8 was not written to be retroactive and that the marriages should remain valid. Protect Marriage argued that no same-sex marriages should any longer be recognized.
The Supreme Court justices have indicated they will hear arguments in the case as early as March, with a ruling expected later in the spring. Kenneth W. Starr, the former Whitewater prosecutor and U.S. solicitor general, plans to argue on behalf of Protect Marriage, the group said Friday.
Some opponents of gay marriage have said that if the court strikes down Proposition 8, they expect to see an effort to recall justices who vote against the measure.
The issue could also have an impact on Brown’s political future. The attorney general, a former governor, has been exploring a run to return to that job in 2010. Among his potential opponents for the Democratic nomination are San Francisco Mayor Gavin Newsom, who is a hero to many gay rights advocates for his decision to begin same-sex marriages in his city in 2004.
The current legal chapter started because of those weddings. In a landmark ruling in May, the California Supreme Court ruled 4 to 3 that the guarantee of equal protection in the state Constitution required that same-sex marriage be treated the same as heterosexual marriage.
In response, foes of gay marriage mounted a well-organized campaign to amend the Constitution in an effort to put the question out of reach of the judges.
Passage of the ballot measure ignited widespread protests by gay rights groups, including boycotts of supporters of the measure.
The day after the election, gay rights advocates and several city governments, including those of San Francisco and Los Angeles, filed legal challenges.
They argued that the proposition should be rejected because it was a wholesale revision of the Constitution instead of a more limited amendment. A constitutional amendment can be passed by majority vote after being put on the ballot by a signature drive, but a revision can be placed on the ballot only by a two-thirds vote of the Legislature or a constitutional convention.
Supporters of Proposition 8 agreed with him on that point. But they sharply denounced his chief argument.
Protect Marriage had earlier received permission from the court to intervene in the case on the side of Proposition 8. At the time, the group had argued that Brown could not be trusted to defend the measure. Pugno said Friday night that he was glad he had asked to intervene.
Legal analysts had previously thought the majority of the court was leaning toward upholding Proposition 8. The argument that the proposition was an improper revision of the Constitution appeared to face a difficult path. By introducing a new argument, Brown might find an opening for justices to maintain the right to same-sex marriage, they said.
Nonetheless, the attorney general’s brief surprised some legal scholars.
Santa Clara University law professor Gerald Uelmen, an expert on the state high court, said Brown’s argument “turns constitutional law on its head.” Uelmen said he was unaware of any case law that supported Brown’s theory.
He added that he expected the state Supreme Court to reject the argument. “I think it is much too radical for this court,” he said.
Goodwin Liu, associate dean and professor of law at UC Berkeley’s Boalt Hall School of Law, said it was “extraordinary for the chief law enforcement officer of the state to decline to enforce a law — even on the grounds that it is unconstitutional.”
“The chief law enforcement officer of the state is charged with enforcing laws, even laws with which he disagrees,” Liu said.
“Whether or not it will carry the day,” he added, “I have no idea.”