Attorney general seeks invalidation of Proposition 8

SAN FRANCISCO – California Attorney General Jerry Brown asked the state Supreme Court on Friday to invalidate the voter-approved ban on gay marriage, declaring that “the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification.”

Brown’s argument on Proposition 8, contained in an 111-page legal brief to the California Supreme Court filed at the last possible moment before the court’s deadline, surprised many legal experts. The attorney general has a legal duty to uphold the state’s laws as long as there are reasonable grounds to do so. Last month, Brown said he planned to “defend the proposition as enacted by the people of California.”

But in his filing, Brown, who personally supports same-sex marriage, offered a novel legal theory to back his argument that the measure should be invalidated.

The California Constitution protects certain rights as “inalienable,” Brown wrote. Those rights include a right to liberty and to privacy, which the courts have said includes a person’s right to marry.

The issue before the court “presents a conflict between the constitutional power of the voters to amend the Constitution, on the one hand, and the Constitution’s Declaration of Rights, on the other,” Brown wrote.

The issue “is whether rights secured under the state Constitution’s safeguard of liberty as an ‘inalienable’ right may intentionally be withdrawn from a class of persons by an initiative amendment.”

Voters are allowed to amend other parts of the constitution by majority vote, but to use the ballot box to take away an “inalienable” right would establish a “tyranny of the majority,” which the Constitution was designed, in part, to prevent, he wrote.

Opponents of gay marriage, who also filed arguments with the court Friday, offered a sharply differing view of the case. The brief, filed by the Protect Marriage coalition, told the justices they should uphold the proposition, which voters approved Nov. 4 by a margin of 52 percent to 48 percent after one of the most expensive and emotional campaigns in state history.

The 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 the people have wrought in constitution-amending is deemed unenlightened,” they argued.

In an interview, Andy Pugno, the lawyer for the Protect Marriage coalition, called Brown’s argument “an astonishing theory.” He added that he was “disappointed to see the attorney general fail to defend the will of the voters as the law instructs him to.”

The justices have indicated they will hear arguments in the case as early as March, with a ruling expected later in the spring. Kenneth W. Starr, the former Whitewater prosecutor and U.S. solicitor general, plans to argue on behalf of Protect Marriage, the group said Friday.

Passage of the ballot measure ignited widespread protests by gay rights groups, including boycotts of supporters of the measure.