Jerry Brown’s Argument to Void Prop. 8 Under Attack

Same-sex marriage opponents filed legal briefs Monday suggesting California attorney general Jerry Brown “invented an entirely new theory,” one that “fails at every level,” in his attempt to invalidate Prop. 8, which banned same-sex marriage in the state when it passed at the polls 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."

Whitewater prosecutor and Pepperdine Law School dean Kenneth Starr cowrote the filing in response to a brief filed two weeks ago by Brown.

In his brief the attorney general said Prop. 8 is in and of itself unconstitutional because it “deprives a minority group of a fundamental right.”

"It became evident that the Article 1 provision guaranteeing basic liberty, which includes the right to marry, took precedence over the initiative," he said in an interview shortly after filing the brief. "Based on my duty to defend the law and the entire constitution, I concluded the court should protect the right to marry even in the face of the 52% vote."

Starr argues that Brown’s theory is "utterly without foundation in this court's case law" and "is not only unprecedented but contradicts the most basic understanding of the role of the judiciary in a constitutional democracy."

Brown’s promise to fight to overturn Prop. 8 came as something of a shock. Though Brown has said he is personally supportive of same-sex marriage, his job as attorney general is to uphold state law.

Prior to filing the brief, he had pledged to defend Prop. 8 after gay rights activists and California cities filed suits challenging it the day after the election. (Advocate.com)

Keywords: California marriage Prop 8

Related stories from Advocate.com

2009-07-02: The Faces of Federal Prop. 8
2009-06-20: The Great Undoing?
2009-06-03: The Upside of Prop. 8
2009-05-29: Pastors: No Marriage for Straight People
2009-05-28: Aftermath: Day of Decision

Reader Comments

These comments are reproduced as written by visitors to this Web site. They have not been edited for content, grammar, or spelling. The viewpoints appearing here are those of the writer, and do not necessarily reflect the opinion or views of advocate.com, The Advocate, or its affiliates.

Name: Jeremy
Date posted: 2009-01-12 10:00 PM
Hometown: Boston

Comment:

(cont'd) Constitutions are the will of the people, but they are first and foremost based on EQUALITY (of all citizens). I've found that many people seem to incorrectly equate our democracy with voting. Voting is an essential part of our democracy, but it is only one part--our democracy is first based on the EQUALITY that is rightfully guaranteed by the Constitution (California's in this case). One of the vital elements in our government is the system of checks and balances. And Starr seems to indicate that there should be no "check" in regard to the power of the voting public. This is just plain wrong. If Prop 8 stands, it sets a precedent saying that if you have enough votes (and money) you can take away any fundamental right you want from gays and lesbians (or any minority for that matter).

Name: Frank Erdman
Date posted: 2009-01-08 2:13 PM
Hometown: Austin

Comment:

By Mr. Starr's theory, no African American students would have been allowed into the University of Mississippi during the civil rights era, because no doubt at the time, a majority of people in that state would not have wanted that. Mr. Starr is basically saying a bare majority of people get to decide on civil rights, instead of the court of law. So, by this logic, if 51% of the California voters voted for segregated schools, then we would have to go back to that. The whole point of the civil rights movement is that inalienable rights are the purvue of the judicial system to decide, and not the popular vote. Gosh, you know, in 1776, a majority of the people in the American colonies wanted to stay with the British, but a small group of people who believed in inalienable rights persevered against the then-majority. So the point here is that sometimes the rights of humankind needs to be defended by the minority. Something Mr. Starr completely misses.

Name: Joseph
Date posted: 2009-01-07 2:24 AM
Hometown: Montgomery, AL

Comment:

One final comment, and this is to Art: Don't hold your breath. Obama OPPOSES same-sex marriage. ON RELIGIOUS GROUNDS. As for installing liberal judges to enact pro-gay legislation, ain't gonna happen. The two Justices most likely to leave office voluntarily are both already "liberal" (Stevens and Bader-Ginsburg) andthe Democrats do NOT have enough votes to prevent filibusters by the GOP against justices deemed "too liberal". They need 60, but even with Franken's representing Minnesota, there will only be 57 Democrats. There are 2 independents (Lieberman and Sanders) and 41 GOPers. (And, given the threats made by the Democrats against Lieberman during the last half of the year, he's very likely to vote with the GOP a heck of a lot--especially on Supreme Court nominees.)

Name: Joseph
Date posted: 2009-01-07 1:58 AM
Hometown: Montgomery, AL

Comment:

(continued) Building on the Amendment procedure, most other states do operate under a system by which the State Legislators introduce and pass measures which, IF they're intended to alter the State Constitution, become proposed amendments. Most states send these proposals to the people for them to vote on. I believe you've mistaken the STATE Constitutional Amendment procedure with the process to amend the FEDERAL Constitution. (Under that process, most states ratify Federal Amendments through their legislatures, rather than going to the people. Some states do choose to ratify after the people have voted on the matter, but how states ratify the Constitution is left up to each state.)

Name: Joseph
Date posted: 2009-01-07 1:50 AM
Hometown: Montgomery, AL

Comment:

(continued) 3--Jason, you're incorrect about the method by which State Constitutions are amended. Some states may operate the way you suggest, but many others ARE voted on by the people of the state. California additionally has the I&R (Initiative and Referendum) system, by which individuals or special interest groups can introduce initiatives and referendums WITHOUT needing to go to the Legislature. (This is a very long-standing part of California's Constitution.) The person (or group) creates a petition and asks people to sign it. Once enough people have signed the petition, it's presented to the proper state office for the signatures to be verified. If the verified signatures have passed the minimum threshhold, the initiative becomes a potential amendment which is to be voted on by the people of California.

Name: Joseph
Date posted: 2009-01-07 1:41 AM
Hometown: Montgomery, AL

Comment:

(continued) 2--By the Supreme Court's ruling in the 1967 Loving case, marriage was declared a CIVIL right of the people. The Court did uphold that the states do have a right to impose certain restrictions (such as a minimum age requirement or limitations between family members; for some states, first cousins can marry while other states prohibit such marriages--first cousins who've married, however, can move freely without facing a state-ordered dissolution of the marriage). An argument can be made that the Court didn't intend for same-sex couples to marry but gay rights only came to the forefront 2 years after the Loving decision, and even today, many in the LGBT community oppose marriage. (Then again, there's not a lot of calls from the religious right to impose laws against divorce or restoring penalties for adultery.)

Name: Joseph
Date posted: 2009-01-07 1:33 AM
Hometown: Montgomery, AL

Comment:

A few points that need to be addressed: 1--Jason, there is an even more fundamental Constitutional issue that has not only been completely ignored but it has been criminally ignored. Article IV, Section 1, aka, "The Full Faith and Credit Clause". It reads, "Each state to give credit to the public acts, etc., of every other state." This is the reason why we don't have to have a separate driver's license for each state we wish to travel through. This is the reason why straight married couples are not required to get re-married when they move from one state to another (nor are they required to re-marry in their home state after marrying in Vegas or on a cruise or in Tahiti, etc). The Federal Constitution supersedes State laws, even State Constitutions but because of DOMA (which has the force of law but does NOT have the legal standing to override the Full Faith and Credit Clause of the Constitution), states are allowed to ignore same-sex marriages performed LEGALLY in Massachusetts.

Name: Dave Marsh
Date posted: 2009-01-06 4:10 PM
Hometown: Sacramento

Comment:

Mr. Starr is simply glossing over the key issue, whether the majority can, with a simple majority vote, deprive a minority of its constitutional rights. That's the real issue before the court. They've already ruled that civil marriage is a right under the CA Constitution. So, it comes down to whether removing those rights from a minority requires a formal amendment initiated and processed though the legislature with a two-thirds vote before being presented to the populace for a vote to ratify it. or whether a proposition submitted by anyone directly to the populace for a simple majority to make the decision is enough. As a spouse in one of last year's 18,000 CA gay marriages, I hope the CA Supreme Court has the fortitude to reiterate their unambiguous position of last spring, and not submit to the intimidation they're receiving by formulating some arcane legal excuse to overturn their landmark ruling.

Name: Jason
Date posted: 2009-01-06 1:44 PM
Hometown: Phoenix

Comment:

Perhaps Ken Starr should be aware that the USA Constitution overrides State ones when necessary as the USA Constitution is the "supreme law of the land." I ask Americans who voted for Proposition 8, including Mr. Starr, to please refer to Article 14 Sec 1 of the USA Constitution as follows: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its juridiction the equal protection of the laws."

If you would like to submit a comment for posting, please fill out the form above.

All comments submitted via this form are subject to posting or publication. (To send a private letter to an Advocate editor or writer, please use the e-mail button at the top of the page, or use snail mail.) If you would like your comment considered for publication in The Advocate magazine, please include your full name, your city of residence, and a phone number where you can be reached during business hours so that we can confirm your identity. Your e-mail address and telephone number are strictly confidential and will not be shared or used for any purpose other than to contact you about your comment.

See the Contact page for sending comments for reasons other than responding to Advocate editorial and news stories.

Please note that comments sent by fax or snail mail are unlikely to be posted, although they will be considered for publication along with all letters received via e-mail or via this Web page. Comments that chiefly concern Advocate.com content will be considered for posting only on the Web site. The Advocate reserves the right to edit submitted comments for grammar, spelling, obscenities, or libel; we will, however, do our best to preserve the original comment's style and intent. Comments considered for publication in The Advocate magazine may also be edited for length.

More Exclusives

View From the Hill: The End of DADT?
Defense Secretary Robert Gates revealed that lawyers are exploring ways to ease enforcement of the military's gay ban, but cautioned that the law doesn't leave much wiggle room. He need look no further than DOD history for a lesson in altering the policy.

Hot Sheet: Week of July 5
When you get back from that big 4th of July barbecue, unwind with Sacha Baron Cohen's Bruno and your favorite B-movie-mocking, basic cable robots.

Hungry Like the Wolf
A master of viola, ukulele, piano, and harp, Patrick Wolf is a music prodigy -- one who, the night before this interview, spit on a cop and got himself arrested.

Soapside: Advocate's Guide to Daytime
Forbes March talks about playing gay, Otalia fans outraged, update on One Life to Live’s Patricia Maurceri’s firing over gay plot point, Phillip Chancellor III big reveal, and Erica Kane goes to Africa.

The Faces of Federal Prop. 8
With the federal challenge to Prop. 8 moving full speed ahead, Advocate.com sits down with the two couples named as plaintiffs in the suit.

Mommy, the Gays Are Coming
After a year of advancements and celebration for gay and lesbian Colombians, the community takes to the streets of Bogota for the country's biggest pride ever.

The Pride of Antwerp
Advocate.com hits the gay-friendly streets of Antwerp with openly gay police commissioner Serge Muyters.

Excerpt: Mean Little Deaf Queer
In an excerpt from her humorous and harrowing new memoir, Mean Little Deaf Queer, Terry Galloway recalls her early childhood, describing feelings of ugliness, confusion about gender, and being one of the boys.

Top Political Blogs
From Joe.My.God to The Daily Beast, Advocate.com spotlights a few of the best blogs that cover politics, inside and way outside the Beltway.

The Diva of French Television
A hot young screenwriter who has made gay OK for millions of French viewers, Nicolas Mercier sips champagne, dons a feathered hat, and says he wants to see Colin Farrell and Jude Law go at it.