Brown then rejected the argument that Proposition 8 was a "revision," saying the court had previously upheld initiatives that made similarly broad changes in the Constitution.
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."
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jessica.garrison@latimes.com
maura.dolan@latimes.com
Times staff writer Evelyn Larrubia contributed to this report.
