Brown asks state high court to overturn Prop. 8
Bob Egelko, Chronicle Staff Writer
Friday, December 19, 2008
California Attorney General Jerry Brown
(12-19) 18:04 PST SAN FRANCISCO -- State Attorney General Jerry Brown, in a surprise turnabout, asked the state Supreme Court late today to overturn Proposition 8, saying the voter-approved ban on same-sex marriage violates basic rights guaranteed in the state Constitution.
Brown, whose office requires him to defend state laws unless he cannot find reasonable legal grounds to do so, said after Prop. 8 passed Nov. 4 that he would support the initiative before the state's high court.
But in a lengthy filing today, he 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."
Hours earlier, sponsors of Prop. 8 filed arguments asking the court to uphold the ballot measure, which passed with a 52 percent majority. Andrew Pugno, attorney for the Yes on 8 campaign, said he was disappointed at Brown's stance.
"It's unfortunate that the attorney general would not do his duty to defend the will of the voters," Pugno said.
The pro-Prop. 8 brief was filed by Kenneth Starr, the former Whitewater special prosecutor and now dean of Pepperdine University law school. He argued that the court should preserve the people's lawmaking powers by upholding the initiative and invalidating 18,000 weddings performed before the election.
Prop. 8 "does not broadly seek to diminish or eliminate the constitutional or civil rights of gays and lesbians," but is simply "about restoring and maintaining the traditional definition of marriage," Starr said. Decades of legal precedents, he said, require "judges - as servants of the people, to bow to the will of those whom they serve."
The court ruled 4-3 on May 15 that California's ban on same-sex marriage violated the constitutional rights of gays and lesbians to marry the partner of their choice and discriminated on the basis of sexual orientation. Prop. 8 amended the state Constitution to overturn the ruling and declare that only marriage between a man and a woman is "valid or recognized in California."
The court is reviewing lawsuits filed by gay and lesbian couples and by an array of local governments, led by San Francisco, that contend that ballot measure exceeded the legal limits on initiatives by destroying fundamental rights and stripping judges of their authority to protect a historically persecuted minority.
Such profound changes, the plaintiffs argue, amount to a constitutional revision - not merely an amendment - and require a two-thirds legislative vote to reach the ballot.
The justices could hear the cases as early as March and would be required to rule within 90 days. Other interested parties on both sides are scheduled to submit written arguments Jan. 15.
