California Attorney General Jerry Brown, who is responsibile for defending the state’s laws and constitution from challenges, is urging the state Supreme Court to toss a voter-approved definition of marriage that now is part of the state constitution.
In a new statement on the dispute over Proposition 8, through which voters in November approved limiting marriage to one man and one woman, Brown said the vote must be “invalidated.”
The statement drew a stunned reaction from Brad Dacus, whose Pacific Justice Institute is working on friend-of-the-court briefs in the case.
Dacus said Brown originally pledged to defend Proposition 8 “in accordance with his constitutional duty.”
However, Brown’s 111-page brief to the court now asks that the voters’ will be overturned, because he believes a general guarantee of “the inalienable right of liberty” trumps all other provisions in the constitution.
“While Respondent [the Attorney General] does not suggest that the Framers contemplated that liberty interests included a right to marry that extended to same-sex couples, the scope of liberty interests evolves over time as determined by the Supreme Court,” Brown wrote in his brief.
“Astounding,” said Dacus. “Just when you hope Attorney General Brown might even half-heartedly fulfill his constitutional duty to defend Prop. 8, he judo-flips the voters.
“His brief actually calls those who voted for Prop. 8 the ‘tyranny of the majority,'” Dacus said. “With the state’s chief law enforcement officer becoming a law unto himself, I believe we have a constitutional crisis in our state.”
PJI was one of the first to file briefs opposing efforts to stop enforcement of Proposition 8. The group currently is drafting an amicus brief on the merits of the case which will be filed with the court in mid-January.
PJI staff attorney Karen Milam, who directs the Southern California office, said, “There is good reason why Jerry Brown’s argument was never raised by the parties filing suit against Proposition 8: It’s outlandish and has no basis in the law. The people of California deserve better.”
The organization noted, however, that Brown agrees with marriage definition supporters that opponents have no grounds to claim the issue is a “revision” of the state constitution or violates the “separation of powers” doctrine.
Dacus said it was Brown who, priot to the vote, took part in retitling the proposal to describe it as eliminating the “rights” of homosexuals to marry in the state.
There are several private organizations and individuals who now will be tasked with defending the state’s constitution, including Kenneth W. Starr, the former U.S. Solicitor General who led the inquiry into ex-President Bill Clinton’s affair with Monica Lewisky.
Starr has been named the lead counsel for supporters of the vote. The arguments are focusing on several legal challenges filed by pro-homosexual interests.
The group Protect Marriage organized the petitions that put the issue on the November ballot and is intervening in the cases also.
 Seven justices in Supreme Court courtroom in Sacramento, from left to right: Associate Justice Carlos R. Moreno, Associate Justice Joyce L. Kennard, Associate Justice Kathryn Mickle Werdegar, Chief Justice Ronald M. George, Associate Justice Ming W. Chin, Associate Justice Marvin R. Baxter and Associate Justice Carol A. Corrigan |
The California Supreme Court earlier agreed to hear the cases.
According to court documents, the issues to be argued include the following:
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1. Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?
2. Does Proposition 8 violate the separation of powers doctrine under the California Constitution?
3. If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?
The court ordered the state of California, Brown, the state registrar of vital statistics and the deputy director of health information and strategic planning of the California Department of Public Health to “show cause before this court … why the relief sought by petitioners should not be granted.”
The Supreme Court rejected a stay on Proposition 8, allowing it to remain in effect and preventing more homosexuals from exchanging vows until the case is decided. Approximately 18,000 homosexual “marriages” have taken place since June when the court ruled 4 to 3 to legalize the unions.
In response to the court’s decision to hear the challenges, Randy Thomasson, president of Campaign for Children and Families, said the court must consider the will of the people.
“The court is playing with fire by threatening to destroy the people’s vote on marriage,” he said in a statement. “The California Constitution clearly says that the voters have the right to alter the highest law of the land. It’s the beauty of the American system of government. The four Supreme Court justices who unconstitutionally invented homosexual ‘marriages’ – Ron George, Joyce Kennard, Kathryn Werdegar and Carlos Moreno – seem to be ignoring the fact that the people get the last word, not the judges.”
The state Supreme Court had ruled in a previous case that the state had to grant “marriages” to same-sex couples. The Proposition 8 petition campaign already was under way at the time and shortly later was validated for the Nov. 4 ballot.
The campaign had been launched, because the voters earlier approved a definition limiting marriage to one man and one woman that only was embedded in state law and, thus, subject to change by a court. Supporters specifically worked on a constitutional amendment to take the issue out of the hands of the courts.
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