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Brown asks justices to toss Prop. 8

The attorney general tells the state high court that the measure barring gay marriage removes basic rights.

December 20, 2008|Jessica Garrison and Maura Dolan

LOS ANGELES AND SAN FRANCISCO — 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."

But in his filing, Brown, who personally supports same-sex marriage, offered a novel legal theory to back his argument that the measure should be invalidated.

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rights secured under the state Constitution's safeguard of liberty as an 'inalienable' right may intentionally be withdrawn from a class of persons by an initiative amendment."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.

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