“Supporters of Proposition 8, the California initiative that eliminated the right of same-sex couples to marry last month, reacted with surprise and dismay this weekend to the announcement by the state’s attorney general that he had reversed his position and would ask California’s high court to invalidate the measure.
Jerry Brown, the state’s attorney general—and a leading candidate to replace Arnold Schwarzenegger as governor in two years—filed papers on Friday asking the state Supreme Court to overturn Proposition 8, which amends the state’s Constitution to define marriage as only between a man and a woman.
The decision is a major reversal for Brown, whose office argued against same-sex marriage in the spring, only to see the Supreme Court find a law banning gay marriage unconstitutional. After last month’s election, in which 52 percent of voters effectively reinstated that law by supporting Proposition 8, Brown again said he would support the will of the people.
In a brief filed on Friday, Brown abruptly changed sides, saying he had looked closely at state precedent and had concluded that he couldn’t defend the new law. “Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification,” Brown’s brief says. The state Supreme Court, in its decision earlier this year, found that gay couples enjoy the same fundamental right to marry that straight people do.”
“On Friday, California attorney general Jerry Brown decided not to honor an earlier promise to defend the constitutionality of Proposition 8, the state marriage amendment approved by voters on November 4. California voters were denied even a pro forma defense of the measure by the government official constitutionally charged to enforce state law — because he just changed his mind.
Opponents of the measure, including the city and county of San Francisco, then filed suit saying that Proposition 8’s single-sentence amendment was such a major change to the state constitution that it should have been approved by the legislature before going to voters and was thereby invalid. (This same legislature had twice voted to overturn California’s marriage law, enacted by voter initiative, despite a clear constitutional provision saying that a voter initiative could not be overturned by a legislative vote.) This is the case in which the attorney general has now decided that defining marriage as the union of a man and a woman is beyond the pale.
Ken Starr will be part of the legal team defending Proposition 8 on behalf of its proponents. It should be remembered that these proponents were granted the right to defend the marriage law only because the California supreme court gave them special permission to be part of the case. Without that permission, Proposition 8 would have gone without a voice in court.
All of this serves to confirm the worst fears of Proposition 8’s supporters. The political and legal elites of the state have done all within their power to endorse the idea that support for traditional marriage is the rankest kind of bigotry that does not deserve even a nominal word in its favor by government officials.
If Proposition 8 does not hold, this new dogma will be the official state policy — and this in spite of a clear legal mandate of the voters of the state to the contrary.
A court order invalidating Proposition 8 would also give the supreme court a super-constitutional power, above the amendment process provided for in the text of the constitution, to determine what subjects are germane to constitutional lawmaking by the people of the state. There is no other way to understand this new theory that a manufactured and unenumerated “right” can become so “fundamental” that it can no longer be the subject of a simple amendment. And, of course, who will decide whether a right has attained this stature? The California supreme court.
The question now appears to be whether the California supreme court will step away from the brink of legal chaos and affirm the principle that the government of California will be a government of laws and not of men and women.”