Californian Attorney General (and former two-term governor) Jerry Brown, in a surprise turnabout, has filed a brief to the State Supreme Court in support of overturning Proposition 8!
Prior to this move, Brown had publicly stated he would uphold Prop 8. Attorneys general are expected to enforce and defend state laws unless they have a strong reason not to. The fact that Brown has taken this high-profile and very political step indicates that he and his team of attorneys are confident they stand on strong legal ground and can defend their position.
In another surprise, Brown did not argue against Prop 8 by saying that the ballot measure was a constitutional revision--which would have thus required the support of two-thirds (instead of a simple majority) of the electorate to pass. Rather, Brown took a totally different legal tact by arguing that Prop. 8 conflicts with the State Constitution's Declaration of Rights, the basic guarantees of liberty declared in the document's first sentences.
But in a lengthy filing late Friday, [Brown] argued that the measure was "inconsistent with the guarantees of individual liberty" in California's governing charter.
"Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification," Brown said.
The authors of the state Constitution, he said, did not intend "to put a group's right to enjoy liberty to a popular vote."
We have a conflict between the amendment power (through voter initiatives) and the duty of the Supreme Court to protect minorities and safeguard liberty," Brown said.
Fundamental rights in the state Constitution, including the right to marry that the state's high court has recognized, "become a dead letter if they can just be amended" by popular vote, Brown said.
Brown's action came only hours after Kenneth Starr, notorious former Whitewater special prosecutor and current dean of (Christian) Pepperdine University law school, filed a brief for Prop 8 proponents seeking to invalidate the roughly 18,000 same-sex weddings that have been performed in the state.
Now, we knew they would probably do this. Nonetheless, the cold-hearted meanness of it takes my breath away. One of my straight friends who happens to be an attorney, upon hearing that Prop 8 proponents were seeking to invalidate marriages already made, exclaimed, "Now, that was a huge mistake," recognizing that, 1) legally, the proposition's wording said absolutely nothing about invalidating legal marriages, and 2) that such cold-heartedness would lose them a lot of former supporters.
Oh boy. This is going to get ugly.