California Atty. Gen. Jerry Brown once again refused to defend Proposition 8's ban on same-sex marriage Friday, telling a federal judge that it violated the U.S. Constitution and should be struck down.
Brown made his arguments in response to a federal lawsuit against the state by two gay couples who contend the initiative violates federal due process and equal protection guarantees.
Over Brown's opposition, the California Supreme Court upheld the proposition last month on state, not federal, constitutional grounds, a few days after the federal suit was filed in San Francisco.
Brown's willingness to fight a state law that has been upheld by the state's highest court contrasted sharply with President Obama's decision this week to oppose a federal challenge to the U.S. Defense of Marriage Act brought in Orange County.
In that case, a married gay couple, Arthur Smelt and Christopher Hammer, has challenged the constitutionality of both Proposition 8 and the 1996 federal law that prohibits extension of federal benefits to same-sex couples.
The U.S. Justice Department has argued that the Orange County challenge should be dismissed, a position that was quickly denounced by gay rights lawyers.
In a statement, Obama's lawyers noted that the president considers the gay marriage ban discriminatory and wants it rescinded, but that his government is legally obliged to defend the law on the books.
"The president has said he wants to see a legislative repeal of the Defense of Marriage Act because it prevents [lesbian, gay, bisexual and transgender] couples from being granted equal rights and benefits. However, until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system," the statement said.
Brown, however, said that even though California is required to enforce Proposition 8, he is free to agree with the challengers that it violates the 14th Amendment of the U.S. Constitution.
Brown's position, laid out in a brief filed late Friday, puts the state's highest-ranking law enforcement officer on the record declaring that the ballot measure violates federal constitutional protections. The San Francisco case may eventually reach the U.S. Supreme Court.
At the same time, Brown argued that U.S. District Judge Vaughan Walker should not suspend Proposition 8 immediately because a higher court could reinstate it later and put same-sex couples in "legal limbo."
