CA's Jerry Brown Asks Court to Invalidate Prop. 8

California Attorney General Jerry Brown reversed course today and asked the California Supreme Court to find Prop 8 unconstitutional.

Brown, who is required to defend state laws unless he cannot find reasonable legal grounds to do so, said after Prop. 8 passed Nov. 4 that he would support the initiative before the state's high court.

"Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification," Brown said. The authors of the state Constitution, he said, did not intend "to put a group's right to enjoy liberty to a popular vote."

The pro-Prop 8 group filed its brief today as well. Their chief counsel? Kenneth Starr.

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    Ken Starr is renowned (5.00 / 1) (#1)
    by andgarden on Fri Dec 19, 2008 at 10:00:17 PM EST
    for being a very poor judge of a public mood, and he has a history of overplaying his hand.

    But isn't it just appropriate that the prude man of the 90s would come back again for an encore? Further evidence that this doesn't have a thing to do with marriage. It's bigotry that's found a convenient hook.

    Ken Starr? (5.00 / 1) (#2)
    by Radiowalla on Fri Dec 19, 2008 at 10:08:37 PM EST
    Déjà vu, all over again!
    Well, they picked one of the country's most sanctimonious scolds to present their case, didn't they?

    Jerry Brown, on the other hand, is a rock star.

    Similar, Less Confrontational Approach (5.00 / 1) (#12)
    by pluege on Sat Dec 20, 2008 at 05:55:22 AM EST
    The gay marriage argument is the wrong argument. Instead of arguing for gays to be able to marry under the current amorphous, kinda religious, sometimes not understanding of marriage, the issue should be argued as solely a binary Constitutional Bill of Rights issue with only two possible outcomes regarding what government can or can't sanction:

     1)    If the government can sanction marriage, bestowing the current legal and financial implications, it must do so for all citizens under the same nonexclusive criteria.
     2)    If the government can't sanction marriage for some US citizens under a certain set of criteria, then it can't do so for any of its citizens and everyone should have to attain a civil union agreement from the government in order for a couple to have the benefits currently associated with marriage.

    If "the people" decide that its (2) then the bigots can makeup whatever constitutes marriage all they want in the privacy of their bigoted houses of worship, while, from the legal meaning of joining, everyone is equal under the law.

    Religions can be discriminatory all they want, the government *State and Federal) can not.  

    Sometimes I really heart Jerry Brown! (none / 0) (#3)
    by otherlisa on Fri Dec 19, 2008 at 10:19:56 PM EST
    And this is one of them. Go Jerry! I had a feeling he'd do the right thing.

    Thanks Jerry n/t (none / 0) (#4)
    by FreakyBeaky on Fri Dec 19, 2008 at 11:42:27 PM EST

    Makes Sense To Me (none / 0) (#5)
    by squeaky on Sat Dec 20, 2008 at 12:12:51 AM EST
    The authors of the state Constitution, he said, did not intend "to put a group's right to enjoy liberty to a popular vote."

    Here here.

    mr. starr does (none / 0) (#6)
    by cpinva on Sat Dec 20, 2008 at 12:56:05 AM EST
    seem fixated on sex. i wonder what skeletons are hanging in his closet?

    This line of argument can't be that new. (none / 0) (#7)
    by phat on Sat Dec 20, 2008 at 01:15:16 AM EST
    But it seems to me that it is.

    It's quite elegant, I have to say. If you want to talk about precedent, I don't know what else might rival this in it's implications.

    I'm pleased.

    We'll see what happens.

    To be honest, I think the implications of this argument, should it win on any level, are astounding.

    Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification," Brown said. The authors of the state Constitution, he said, did not intend "to put a group's right to enjoy liberty to a popular vote.

    I hope I'm not the only one who thinks this is a big deal.

    I have my fingers crossed and kind of hope Sunstein doesn't end up on the Supreme Court. My suspicion is he may not appreciate this line of reasoning.

    If anyone here has a better understanding of Sunstein, let me know.

    I will just add that Ken Starr has been a strong advocate against the death penalty. He is on the wrong side of the law in this case and I would hope he could see the subtle implications that any decision concerning Brown's brief on gay marriage may have on that position. He won't likely see those implications.

    The major test on the death penalty in the courts is still based upon public opinion, however ridiculous that argument might be. Brown's line of reasoning, which I know he didn't come up with on his own, questions these kinds of tests.

    If I'm not mistaken, that may be the only major test in front of the US Supreme Court that holds public opinion as being paramount.

    Kudos to Edmund G. Brown Jr. (none / 0) (#8)
    by oculus on Sat Dec 20, 2008 at 02:11:12 AM EST

    I am not getting this (none / 0) (#9)
    by BrassTacks on Sat Dec 20, 2008 at 03:04:11 AM EST
    Why do they keep letting people vote then over ruling them?  Why not skip the voting part?   The people have voted on this issue twice and twice over ruled by the judges.  So, they should be voting.  Makes no sense. It's obvious that it doesn't matter what the people want, so why bother to complicate the matter with another vote?  Cut out the middleman, and just let the judges decide.

    Protection of the minority (5.00 / 2) (#13)
    by pluege on Sat Dec 20, 2008 at 06:03:50 AM EST
    from the tyranny of the majority.

    Protection of minorities, any minority is in any group less numerous than another group is a fundamental principle underpinning the US Constitution and Bill of Rights. Google "Tyranny of the Majority" to check it out.


    Protection against Tyranny of the Majority (5.00 / 1) (#14)
    by pluege on Sat Dec 20, 2008 at 06:19:36 AM EST
    is why

    • the Senate exists
    • the Government can not establish a religion
    • it takes agreement of 3/4 of the states - better than a super majority, to amend the US Constitution
    • Blacks were given full voting status and women were given the right to vote
    • its explicitly illegal in most situations to discriminate based on race, religion, or gender.

    Now all we have to do is add sexual orientation to the list of illegal causes of discrimination - something that would be completely consistent with the Constitutional concept of protecting minorities from the tyranny of the majority, whereas the opposite, e.g., proposition 8 is contrary to the Constitution.

    What Jerry Brown is attempting IS protecting and adhering to the Constitution. What a simple majority of California voters did by passing proposition 8 is NOT.


    Hiram Johnson didn't like (none / 0) (#25)
    by oculus on Sat Dec 20, 2008 at 12:21:16 PM EST
    the Legislature not passing his proposed legislation.

    that's the whole point of the case (none / 0) (#38)
    by TimNCGuy on Sun Dec 21, 2008 at 07:38:25 AM EST
    that was brought to the CA Supreme Court.  They are arguing that Prop 8 should never have been placed on the ballot in the first place.  They are arguing that the type of change implemented with passage of Prop 8 legally required a different process of going through the legislature prior to getting on the ballot.

    I don't know why they didn't bring this challenge BEFORE letting Prop 8 get onthe ballot in the first place.


    They did bring this to the SC (none / 0) (#41)
    by DaleA on Sun Dec 21, 2008 at 12:26:15 PM EST
    before the election. The Supreme Court of California choose to let Prop 8 go to a vote, no reason given.

    I can't believe (none / 0) (#10)
    by lilburro on Sat Dec 20, 2008 at 03:05:28 AM EST
    the Prop 8ers have filed a motion to nullify all existing same-sex marriages.

    They are crazy.  They are just crazy.

    They aren't crazy. (none / 0) (#15)
    by andrys on Sat Dec 20, 2008 at 07:11:50 AM EST
    They're just evil.

    They get off, in a big way, on denying rights to anyone who doesn't share their state of mind.


    inalienable rights anyone? (none / 0) (#11)
    by pluege on Sat Dec 20, 2008 at 05:48:23 AM EST

    Democracy is good (none / 0) (#16)
    by Wile ECoyote on Sat Dec 20, 2008 at 07:51:08 AM EST
    until your point of view loses.  

    I disagree (none / 0) (#18)
    by Steve M on Sat Dec 20, 2008 at 09:09:04 AM EST
    There is nothing salutary about watching someone's human rights be subjected to a majority referendum, regardless of which side wins.

    Why was this even left up to mob rule? (none / 0) (#22)
    by Wile ECoyote on Sat Dec 20, 2008 at 11:00:05 AM EST
    it seems to me the prop was unconstitutional to begin with.  Jerry Brown thought otherwise immediately after the outcome

    (Asked about his change of position, Brown said Friday evening that since his initial comments the day after the election, he and senior lawyers in his office had looked closely at the court's precedents and at the recent marriage ruling and concluded they couldn't defend Prop. 8.

    "We have a conflict between the amendment power (through voter initiatives) and the duty of the Supreme Court to protect minorities and safeguard liberty," Brown said.

    Fundamental rights in the state Constitution, including the right to marry that the state's high court has recognized, "become a dead letter if they can just be amended" by popular vote, Brown said.)

    If the Prop 8 would have lost, those on that winning side would be crowing and the losers would have said the same things.  Would a gay couple want to base their marriage on the outcome (either way) of a prop that was unconstitutional to begin with?  

    I do find California propensity for props humorous, but when you get right down to it the best way to change something is to elect the officials you want.   Term limits now for everyone.  


    California has term limits (5.00 / 1) (#24)
    by cenobite on Sat Dec 20, 2008 at 11:17:09 AM EST
    And, IIRC, the legislature passed same-sex marriage authorization twice, and it was vetoed by the governor every time.

    If what you're saying is that California should stop electing goopers, I heartily agree, they've driven the state to near bankruptcy, and show no signs of stopping.


    Let's have a vote on your marriage, then (none / 0) (#19)
    by andgarden on Sat Dec 20, 2008 at 09:23:05 AM EST
    I sure hope you never made any enemies!

    LOL (none / 0) (#23)
    by Wile ECoyote on Sat Dec 20, 2008 at 11:05:50 AM EST
    I was against prop 8.  But Prop 7 was the one I was really interested in.

    Hell, let's have a vote (none / 0) (#26)
    by Spamlet on Sat Dec 20, 2008 at 01:31:08 PM EST
    on Proposition V, to criminalize the sale and use of Viagra. My guess is that some trophy wives will be first in line to pass this one.

    Why?? (none / 0) (#29)
    by jimakaPPJ on Sat Dec 20, 2008 at 03:15:38 PM EST
    All that would do is reduce the number of trophy wives!

    No (none / 0) (#32)
    by Spamlet on Sat Dec 20, 2008 at 03:55:16 PM EST
    The passage of hypothetical Proposition V might increase the number of trophy wives. The ones I'm thinking of could resume their scheduled activities, not including sex with rich but erotically repellent husbands.

    I dunno (none / 0) (#36)
    by jimakaPPJ on Sat Dec 20, 2008 at 08:17:23 PM EST
    less V so less reason for the trophy wife...

    reduction on the demand side....

    speaking of drug strategies.....


    Disagree (none / 0) (#42)
    by Spamlet on Sun Dec 21, 2008 at 04:36:47 PM EST
    The primary function of a certain kind of trophy wife has never been to serve as an actual sex partner. Her primary function has always been to serve as arm candy, thus imputing sexual prowess to the rich but repellent and/or impotent husband (his condition being due to his advanced age, if not to some other cause).

    This was a function that trophy wives were happy to fulfill, given the material rewards. But then along came Viagra, introducing a new element of risk--the demand for a specifically sexual quid pro quo. If I were a trophy wife in this situation, I certainly would vote for a ban on Viagra.

    Anyway, all we're debating here is a hypothetical political initiative, in the context of a cartoon version of actual human beings.

    Happy solstice.


    Never having been a trophy wife (5.00 / 0) (#43)
    by jimakaPPJ on Sun Dec 21, 2008 at 06:09:23 PM EST
    or had one

    I'll tell you here and now

    I'd rather see than be one..

    With apologies to some poet.


    "Point of view"? (none / 0) (#27)
    by Spamlet on Sat Dec 20, 2008 at 01:34:10 PM EST
    When I told my brother I'm gay, he said, "Well, I disagree with your views." But the only one expressing a "view" was my brother. Funny how that works.

    Will this argument apply to... (none / 0) (#17)
    by EL seattle on Sat Dec 20, 2008 at 08:03:07 AM EST
    ... polygamy as well?  If three or more adults want to marry, isn't that liberty a constitutional right, too?

    This "argument" is nonsense (5.00 / 2) (#20)
    by kenosharick on Sat Dec 20, 2008 at 10:09:52 AM EST
    No one is talking about multiple marriages. Why do you homophobes always bring up such craziness? Marriage is a legal contract recognized by the state, with a multitude of benefits that TWO persons enter into. Not groups or animals; these "arguments" make sense to rush limbaugh and his ilk, but not to thinking persons.

    Yes, the heart (none / 0) (#21)
    by KeysDan on Sat Dec 20, 2008 at 10:58:25 AM EST
    of the issue is the constitutionality of the state requiring that the two individuals of this civil contract, with its legal and other derived benefits, must be members of the opposite sex. Unlike the state, religious organizations have the ability to set whatever standards, requirements or traditions desired to enter the marital covenant; as a private enterprise, no need for religious groups to be concerned with equality, indeed, membership is discriminatory based on subscription to particular beliefs. It is in the interest of both the state and religion not to get these ideas mixed up.

    Anyone have a link (none / 0) (#28)
    by dk on Sat Dec 20, 2008 at 01:54:26 PM EST
    to Jerry's brief?

    Here ya go (5.00 / 1) (#33)
    by lobary on Sat Dec 20, 2008 at 04:23:06 PM EST
    Thanks for the link! <nt> (none / 0) (#40)
    by EL seattle on Sun Dec 21, 2008 at 10:14:10 AM EST
    As I have said before (none / 0) (#30)
    by jimakaPPJ on Sat Dec 20, 2008 at 03:18:58 PM EST
    I don't care who marries who or why. And anyone who can support multiple spouses is welcome......

    But why not a Constitutional Amendment and get it behind us??

    Jerry (none / 0) (#31)
    by Abdul Abulbul Amir on Sat Dec 20, 2008 at 03:21:29 PM EST

    Brown to blacks and Latinos:  Drop dead!

    Wrong! (5.00 / 3) (#34)
    by mexboy on Sat Dec 20, 2008 at 05:43:15 PM EST
    I do not accept your divisive comment.

    A lot of us, Latinos, voted against prop 8. Those who did, do not represent my community, anymore than  George Bush represents all white people.

    Brown to Californians: In California everyone is equal under the law.

    Get it?


    Thank you. (5.00 / 1) (#35)
    by oculus on Sat Dec 20, 2008 at 05:47:54 PM EST
    P.S.  We had a discussion at tutoring about Prop 8 the day before the election,  The kids are all U.S.-born Latinos whose parents mostly have immigrated from Mexico.  The kids were outspokenly against Prop 8.  They cited equal rights and gay relatives.  

    This is offensive (5.00 / 0) (#37)
    by otherlisa on Sun Dec 21, 2008 at 02:10:38 AM EST
    Latinos voted about 50 - 50 on Prop 8. Asian Americans were even more closely divided. The amount of African American support for Prop 8 is extremely disappointing, but I blame religion for that. Sorry.

    In any case, Jerry Brown's standing up for equality is hardly a "f*** you" to Black and Brown communities. He isn't taking anything away from the African American community. He's only maintaining that the tyranny of the majority cannot be used to remove fundamental rights.


    what a *blank* comment. (5.00 / 0) (#39)
    by lilburro on Sun Dec 21, 2008 at 07:48:50 AM EST
    any reason you singled out race among the many other demographics that supported the proposition?

    Great job guys! (none / 0) (#44)
    by mexboy on Mon Dec 22, 2008 at 05:30:59 AM EST
    We should always call guys like Abdul on their c*@p.

    The more we call them on it, the less they'll be able to dive us.