01/06/2009
AG Jerry Brown at Center of Flurry of New Briefs in Prop 8 Case
This has already been a busy week with regard to Proposition 8. Many new briefs have been filed in the legal arguments for and against the measure, all surrounding AG Jerry Brown's legal brief filed in mid-December which asked the state Supreme Court to void the measure in a stunning reversal from his earlier position.
Legal briefs were filed Monday challenging Jerry Brown's attempt to invalidate Prop 8: "Gay-marriage opponents filed legal briefs...accusing California Atty. Gen. Jerry Brown of having 'invented an entirely new theory,' one that 'fails at every level,' in his quest to find a reason to invalidate Proposition 8, which passed with 52% of the vote in November. 'The people have the final word on what the California Constitution says,' lawyers for the Protect Marriage Coalition wrote. 'The practical result of the attorney general's theory is that the people can never amend the Constitution to overrule judicial interpretations of inalienable rights.' The filing, which was co-written by Whitewater prosecutor and Pepperdine Law School Dean Kenneth Starr, came in response to a brief filed two weeks ago by the attorney general in which Brown surprised legal experts with a novel theory to argue that Proposition 8 should be invalidated."
Local governments also filed new briefs backing Brown's argument: "Local governments, led by San Francisco and Santa Clara County, filed their latest opposition papers to Proposition 8, describing the voter-approved initiative as a 'dark moment' in California history. The brief is an attempt to refute the legal arguments of Proposition 8 backers as the Supreme Court weighs a challenge from government officials, civil rights groups and same-sex couples who are seeking the right to marry. The San Francisco brief sides with the unique argument raised in December by Attorney General Jerry Brown, who argues that voters did not have the authority to strip away a fundamental constitutional right when they approved Proposition 8 in November. Brown, who ordinarily would be forced to defend state law, argued in his December brief that the state Supreme Court's decision last spring striking down California's prior gay marriage ban established that fundamental right to marry."
Attorney Gloria Allred, who is representing Robin Tyler and Diane Olson & Cheri Schroeder and Coty Rafaely in their suit against Prop 8, also filed a reply brief — one that took issue with Brown's argument.
Wrote Allred in a release: "We sued the State of California (Nov. 5, 2008) in this challenge. The State is represented by the Attorney General, and we were happy that the Attorney General responded to our petition to the Supreme Court by agreeing with us that Prop. 8 is unconstitutional. However, we replied to the Attorney General in our brief today because we strongly disagree with his legal position that Prop. 8 is an amendment rather than a revision to the California Constitution. The Attorney General agrees with the Prop. 8 proponents on that issue. This is an extremely important legal point and could be key to the Supreme Court's ultimate decision in this case. Because we are convinced that Prop 8 is a disguised constitutional revision and not an amendment to the Constitution, we believe that the proponents of Prop. 8 did not follow the correct procedures in attempting to make a fundamental constitutional change which would eliminate the basic human and constitutional right to marry for gay and lesbian individuals in California. If our legal argument is persuasive on this point then Prop. 8 could be ruled invalid for that reason alone."
The Sacramento Bee looks at Jerry Brown's controversial role challenging the passage of Prop 8: "It's a move that could pay political dividends in a June 2010 Democratic primary against another likely gubernatorial candidate, San Francisco mayor and gay marriage champion Gavin Newsom...His intervention is hailed in heroic terms by Proposition 8 opponents – even though Brown also rejected the opponents' core legal argument challenging the initiative...Yet gay marriage opponents say Brown is abandoning his statutory role as attorney general by refusing to represent the majority of voters who approved Proposition 8 as an amendment to the state constitution."
Here is the California Supreme Court's official page containing all the Prop 8 filings.
(image Michael A Jones - Sac Bee)
Posted 9:18 AM EST by Andy Towle in California, Gay Marriage, News, Proposition 8 | Permalink
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I'm probably missing something, but I don't understand Starr's rebuttal to Brown's argument. Brown isn't saying that inalienable rights can never be taken away, he says that they can't be taken without a compelling reason. In addition, if the people were to decide through a constitutional convention to remove Article 1, Section 1 which enumerates inalienable rights, they could do so. I thought Brown's argument made perfect sense (although I am biased) - but seriously what sense does it make to say certain rights are inalienable and then allow them to be selectively removed for certain minorities by a simple majority vote. That would basically render the declaration of inalienable rights hollow and without true meaning. The framers of course weren't thinking about "gay marriage". But I agree with Brown that they wanted to clearly state that certain rights were intrinsic to human beings and were above the political fray. The prop 8 people of course hate this argument because who in their right mind would disagree with: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and
liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."
This isn't really about gay marriage anymore. This has risen to a fundamental issue about minority rights.
Posted by: Mike | Jan 6, 2009 10:01:41 AM
It always was a "fundamental issue about minority rights". That is why so many of us remain justifiably appalled by the ineptitude of the so-called leaders of the anti-Prop 8 coalition. They let it become a popular vote on the definition of the word 'marriage' rather than framing it properly as an attempt by the majority to take away rights already found to be enumerated in the consitution. Their cowardice resulted in the travesty of outright tyranny of the majority and miscarriage of justice, the very outcome that the concept of "inalienable rights" inherent in humans--enshrined in the constitution--was designed to prevent. This legal and moral debacle is only now becoming apparent to some. One hopes it is not too late to remedy this abomination.
Posted by: rudy | Jan 6, 2009 10:17:21 AM
I keep thinking of Moore's movie SICKO and how he mentioned in France people RAISE HELL in the streets in response to injustice and the government is afraid of pissing off its citizenry; the government is RESPONSIBLE to its people. In America we get disgruntled and click on email petitions, beg, and donate millions; we are collectively terrified of the government (and IRS). Will we ever have a true revolution?
Posted by: John Bisceglia | Jan 6, 2009 2:05:32 PM
Rudy: definitely agree about the ineptitude of the anti-Prop 8 crew. Their insular focus assured they'd never connect to the average or uncertain voter. Hence the abomination.
On a more general note, I honestly fail to understand why so many people hire attorney Gloria Allred and why she's now so active in Prop 8 cases. Does she do a lot of pro bono work or something? She was involved in the San Francisco case where the two dogs viciously killed the lesbian right outside her apartment, and Allred's behavior in the courtroom was nothing short of insane.
Posted by: Paul R | Jan 6, 2009 2:11:10 PM