Attorney General Brown Urges Supreme Court to Invalidate Prop 8

Proponents of Prop 8 Urge Court to Invalidate 18,000 Gay Marriages

California Attorney General Jerry Brown today urged 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", Brown said.

"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 that "in order to invalidate (the) fundamental right (to marry), 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. "

Meanwhile, the Sacramento Bee reports that supporters of Proposition 8 filed a brief arguing that California cannot recognize same-sex marriages in California, based upon the language of Prop 8 - that only marriages between a man and a woman are recognized or valid in California.

"Proposition 8's brevity is matched by its clarity. There are no conditional clauses, exceptions, exemptions or exclusions," reads the brief co-written by Pepperdine University law school dean Kenneth Starr, the former independent counsel who investigated President Bill Clinton.

It was also announced that Ken Starr would serve as lead counsel for the Yes on 8 team, and would argue before the California Supreme Court. Evidently, he will argue that the Court is without authority to overturn Prop 8's ban on same-sex marriage:

For this court to rule otherwise would be to tear asunder a lavish body of jurisprudence. That body of decisional law commands judges - as servants of the people - to bow to the will of those whom they serve - even if the substantive result of what people have wrought in constitution-amending is deemed unenlightened.

(Interesting use of "asunder", "lavish" "bow" and "wrought" in one paragraph.)

Attorney General Brown has taken the position 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."

The 111-page brief filed by the California Attorney General is available online as a pdf.

The brief filed by the Yes on 8 team was not immediately available.


Photograph: Jerry Brown as Mayor of Oakland