AG Brown’s Surprising Friday Evening Announcement on Prop 8

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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

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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16 Comments

  1. "Mother Nature&

    Once again, our beloved AG, Jerry …Moonbeam… Brown, leads the way to the Obama era-where cronies, corruption, and coercion will rule. Can legalized polygamy be far behind!

  2. Chuck

    …Once again, our beloved AG, Jerry …Moonbeam… Brown, leads the way to the Obama era-where cronies, corruption, and coercion will rule. Can legalized polygamy be far behind!…I suppose the Bush Era is something we should emulate instead?

  3. manny

    I assumed that marriage was a 'privilege' and not a 'right' – similar to having a driver's license. I don't recall ever discussing in school – elementary and college – the right to marry.It baffles me that we've blurred the line between privileges and rights.

  4. Anonymous

    The way this blog is going, what with people assuming this and that, passing rumors and slanting the news in general, I thought Tom Wolfe's report on blogs in general might be refreshing here now:…One by one, Marshall McLuhan's wackiest-seeming predictions come true. Forty years ago, he said that modern communications technology would turn the young into tribal primitives who pay attention not to objective …news… reports but only to what the drums say, i.e., rumors.And there you have blogs. The universe of blogs is a universe of rumors, and the tribe likes it that way.Blogs are an advance guard to the rear. For example, only a primitive would believe a word of Wikipedia (which, though not strictly a blog, shares the characteristics of the genre). The entry under my name says that in 2003 …major news media… broadcast reports of my death and that I telephoned Larry King and said, …I ain't dead yet, give me a little more time and no doubt it will become true….Oddly, this news supposedly broadcast never reached my ears in any form whatsoever prior to the Wikipedia entry, and I wouldn't have a clue as to how to telephone Larry King. I wouldn't have called him, in any case. I would have called my internist. I don't so much mind Wikipedia's recording of news that nobody ever disseminated in the first place as I do the lame comment attributed to me. I wouldn't say …I ain't… even if I were singing a country music song. In fact, I have posted a $5,000 reward for anyone who can write a song containing the verb forms …am not,… …doesn't,… or …isn't… that makes the Billboard Top Twenty.Favorite blogs: Mr. Wolfe, …weary of narcissistic shrieks and baseless 'information,'?

  5. Contrary View

    Interesting evidence …manny…–you …assumed…andyou don't remember discussing the right to marry in …elementary… or …college…Which doesn't mean a whole lot to me unless college included law schoolI'd be interested to see how you would respond if you wished to marry a woman (assuming you are a man given your listed name here) and were told you didn't have the right to marry her.A driver's license requires you to keep a good driving record and pass a proficiency test in order to obtain the privilege. if you violate or fail those conditions, you do not gain a license.In what sense would you see marriage as analogous situation to a driver's license?In fact, I do not know under any conditions, even imprisonment a case where an individual could not be allowed to marry another consenting adult of the opposite sex. So I fail to see how it is a privilege.I will be interested in your legal argument however.

  6. Anonymous

    …Can legalized polygamy be far behind!…Red herring. You're reaching, here.We've already dealt with polygamy, and even the Mormons reject it after first embracing it.This is specifically about marriage between two individuals.If you'd like to define marriage as only between a man and a woman, then I have a question I've been puzzling over recently:What happens if one person in a heterosexual marriage gets a sex-change?What happens, legally, to a hermaphodite? Can he/she legally marry?Is current law clear on these cases?

  7. Rich Rifkin

    …I assumed that marriage was a 'privilege' and not a 'right' – similar to having a driver's license….You (perhaps intentionally) are confusing this issue by misusing your terms. The right is not to have the state recognize your marriage. The right is to be treated equally under the law. As such, when straight couples are given the protections and responsibilities and liabilities of legally sanctioned marriage, gay couples have the right to be treated the same by the state. It is therefore a question of rights, not privileges. However, you have misconstrued just where those rights apply.It is much the same with driver's licenses: you have the right to be treated the same as anyone else. If Citizen X meets the age, skills, and other rulebook criteria to get a driver's license, the state has no right to deny him that license if it grants a license to Citizens Y and Z based on the same criteria….Can legalized polygamy be far behind!…Legalized? No. That falls outside of equal treatment, because a polygamous union is not …a couple…. Whereas the state sanctions the marriage of a male-female coupling and should treat equally a male-male coupling or a female-female coupling, a polygamous relationship is not a coupling and therefore does not qualify for equal treatment.

  8. Anonymous

    I sincerely hope that in the very near future we will not have to have a discussion as to whether or not a same sex couple can marry. They should be given every right to marry and live happily just as as other couples do.

  9. Mike Hart

    I know that this isn't following the rather odd string of commentary, but I thought I might make a comment about what Brown actually did.In short, politics trumped strategy here. Brown's best tactic to support the rights of California citizens would have been to keep his mouth shut and not make this statement. The supporters of Proposition 8 would have been forced to have the AG represent their case. He could have done far more damage as their mandated advocate, then diverging as he has done.I think he took this political position because far too many are incapable of understanding subtlety and might assume him a friend of the repugnant religious thugs attacking the rights of California citizens. He protected his own reputation here, rather than simply do the thankless job of undermining Proposition 8 through the offices of the AG. He could have killed it quietly, instead he takes this position, thus allowing the Prop 8 Proponents to …come out of the closet… and openly fight Brown. It makes better political theater, and puts Brown in the best light.

  10. Anonymous

    The CA Supreme Court will first opine that CA same-sex marriages that were sanctioned before Prop 8 became a part of the CA constitution will continue to be valid. At a subsequent hearing,the Court will heed the decision X2 of the CA voters and find Prop 8 a valid constitutional amendment.

  11. Bushs Fist

    In General the Attorney General defends statewide propositions that get challenged in the legal system, regardless of his personal beliefs. Oh, please. I'm not that stupid.

  12. David M. Greenwald

    I am not sure what you mean by that comment, the AG is supposed to defend the laws of the land, period. That statement was the lead for the next sentence that in this case, the AG has bucked that. I’m not exactly sure what your objection is, I was questioning the legitimacy of his decision to do that.

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