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Saturday, December 20, 2008

AG Brown's Surprising Friday Evening Announcement on Prop 8

In my new job, I get a lot of press releases from statewide officials. On a Friday evening I was not really expecting big news, although it has been an unusual week in the Capital with the budget battle waging. Still you have to believe that if the Attorney General is sending out a Friday at 5 pm press release, he's hoping to bury the news.

In General the Attorney General defends statewide propositions that get challenged in the legal system, regardless of his personal beliefs. And there might be some wiggle room here since you have two conflicting aspects of the California constitution.

Still one probably has to think that the decision by Brown is more political than legal. I say that as someone who supports Gay Marriage and pleased the AG has stepped into the fray on my side.

The first part of what happened yesterday was that opponents of same-sex marriage changed their mind or went back on their word, and sought in court to have 18,000 gay marriages annulled. A few hours later, Jerry Brown, the state's Attorney General comes into the fray. Coincidence? I think not.

According to the press release from the Attorney General's office:
"Attorney General Brown believes that same-sex marriages entered into between June 16 and November 4, 2008 are valid and recognized in California regardless of whether Proposition 8 is upheld."
In general, he makes a similar argument as the one that has come forth elsewhere.

The Attorney General called upon the California Supreme Court to invalidate Proposition 8 because it deprives people of the right to marry—an aspect of liberty that the Supreme Court has concluded is guaranteed by the California Constitution.
“Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification.”
In this case, Attorney General Brown concludes that existing case-law precedents of the Court do not invalidate Proposition 8 either as a revision or as a violation of the separation-of-powers doctrine. But this does not resolve the matter.
"In the In re Marriages Cases, the Court held that article I, section 1 of the California Constitution provides a right to marry that cannot be denied to same-sex couples. Attorney General Brown argues that in order invalidate such a fundamental right; the Court must determine that there is a compelling justification to do so. But in the In re Marriage Cases, the court found that no such compelling justification exists. Accordingly, Proposition 8 must be stricken."
In his legal brief, he writes:
"The writ petitions present an issue of critical significance: whether the voters may, by initiative, amend the California Constitution when doing so takes away a fundamental right from a class of people who are members of a group defined by a suspect classification."
The Attorney General Continues:"Petitioners allege that Proposition 8, which declares that "only marriage between a man and a woman is valid or recognized in California," constitutes an illegal revision of the Constitution rather than an amendment. The Constitution provides two alternative processes for proposing an amendment: either proposal by petition through the initiative process or proposal by the Legislature."

On the other hand, a revision of the Constitution may not be proposed through the initiative process and instead must be proposed either by the Legislature or by a constitutional convention.

As I have suggested previously, the AG is on solid legal ground with the argument. The real question is whether he is the one who should make it. To flip the issue the other way, let us suppose the left side of the spectrum had passed an initiative and a Republican Attorney General not only refused to defend it but joined the side of opposition, I know I would be outraged.

Given the court move by the pro-prop 8 side, I can imagine why the AG decided to strike on a Friday afternoon, but you have to wonder if he wasn't trying to bury the news a little as well.

---David M. Greenwald reporting