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Brown's stand may bolster Prop. 8

Despite his support for same-sex marriage, some say his opinion could help opponents.

December 24, 2008|Victoria Kim and Jack Leonard

California Atty. Gen. Jerry Brown's decision to throw the weight of his office behind same-sex marriage has sparked debate over whether his arguments will actually do more harm than good for those hoping to overturn the initiative.

Brown's request that the California Supreme Court overturn the state's ban on same-sex marriage -- arguing that it undermines fundamental liberties -- has been widely hailed as a victory in the fight for gay rights.

But far less attention has been paid to Brown's long written rejection of some of the principal legal theories put forth by same-sex marriage advocates in their bid to roll back Proposition 8. Indeed, a large chunk of Brown's 111-page legal filing was devoted to shooting down a more technical legal argument used by supporters of same-sex marriage.

Brown said attorneys challenging the measure had failed to prove their point that the measure offers such a major revision to the state Constitution that it cannot be enacted by a voter initiative alone.

His stance surprised both sides in the debate because the attorney general had said he would defend Proposition 8 days after voters approved it on Nov. 4.

Some foes of same-sex marriage have criticized Brown for refusing to defend the will of the people in court. But some also said they are relieved that Brown, who personally supports gay marriage, did an about-face and will not be offering what they feared would have been a half-hearted defense of the initiative before the Supreme Court.

More important, they argue that Brown's position helps undermine the key claim that voters alone cannot decide an issue that makes such a major change to the Constitution.

"That's game, set and match," said John C. Eastman, a director of the conservative Center for Constitutional Jurisprudence at the Claremont Institute, who plans to file a brief supporting the measure. "I think he has greatly bolstered the arguments of the Prop. 8 folks."

Other experts, however, say Brown has carefully forged a legal path that the state's highest court could follow to overturn the initiative. That could be particularly important if the justices reject the other arguments offered by opponents of the measure.

"Strategically, I think it's a clever move," said Jesse H. Choper, a professor of law at UC Berkeley. "It gives the California Supreme Court another way to invalidate Prop. 8."

The Supreme Court, which might hear oral arguments as early as March, is likely to seriously weigh the opinion of the state's top attorney but is not obligated to follow it.

In initially pledging to defend the initiative after its passage, Brown said it was a properly approved amendment to the Constitution.

In an interview Tuesday, he said he changed course after attorneys in his office examined all its legal implications.

Brown said he was particularly struck by the idea that a ban on same-sex marriage conflicted with the Constitution's language protecting liberty, noting that the state Supreme Court ruled earlier this year that the language encompasses the right for same-sex couples to marry.

"The more I reflected on the argument, the stronger I thought it was," he said. "What is a guarantee worth if you can strip it away by calling it an amendment?"

In his filing, Brown said the central issue before the court was a conflict between the rights of voters to amend the state's Constitution and rights of same-sex couples to marry.

In a novel theory, Brown argued that fundamental rights could be amended only if the state had a compelling interest to do so. In banning same-sex marriage, he argued, the state did not have a compelling interest.

The argument allowed Brown to oppose Proposition 8 while taking a position at odds with that of other opponents of the measure.

Gay rights advocates and several city governments have filed briefs arguing that the proposition should be rejected because it was a wholesale revision of the Constitution instead of an amendment.

An amendment can be passed by a majority vote after being put on the ballot by a signature drive. A revision can be placed on the ballot only by a two-thirds vote of the Legislature or a constitutional convention.

Brown also rejected arguments that the proposition violates the separation of powers in government. Advocates of same-sex marriage argue that the initiative interferes with the court's traditional role of protecting the constitutional rights of a vulnerable minority.

Brown cited several previous rulings by the Supreme Court that found that other landmark initiatives, including those dealing with the death penalty and term limits for legislators, did not amount to a revision.

Supporters of Proposition 8 said they welcomed that portion of Brown's brief.

"The court should take note that even an attorney general that wants to strike the amendment down agrees it is not a revision," said Glen Lavy, a lawyer for Alliance Defense Fund in Scottsdale, Ariz., who is preparing to file amicus briefs in the case asking the court to uphold the ban. "We were pleased that he did such a good job addressing why Proposition 8 is not a revision and why it does not violate the separation of powers."

But attorneys on the other side are dubious, adding that the real effect of Brown's brief is offering justices a second path for throwing out Proposition 8.

"We're just getting there through slightly different paths," said Shannon Minter, an attorney for the National Center for Lesbian Rights in San Francisco. "I do think that his ultimate argument does strongly reinforce the conclusion that Prop. 8 should be overturned."

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victoria.kim@latimes.com

jack.leonard@latimes.com

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