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Jerry Brown: Gay-marriage ban should be invalidated

In a surprise move, state Atty. Gen. Jerry Brown asked the California Supreme Court on Friday to invalidate Proposition 8. He said the November ballot measure that banned gay marriage "deprives people of the right to marry, an aspect of liberty that the Supreme Court has concluded is guaranteed by the California Constitution."

It is the attorney general's duty to defend the state's laws, and after gay rights activists filed legal challenges to Proposition 8, which amended the Constitution to ban same-sex marriage, Brown said he planned to defend the proposition as enacted by the people of California.

But after studying the matter, Brown concluded that "Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification."

Backers of Proposition 8 expressed anger at Brown's decision not to honor the will of voters, who approved the measure in November. "It's outrageous,"said Frank Schubert, campaign manager for Proposition 8.

Proposition 8 foes, however, were elated. "Atty. Gen. Brown's position that Proposition 8 should be invalidated demonstrates that he is a leader of courage and conviction," said Geoff Kors, executive director of Equality California.

In his brief to the high court, Brown noted that the California Constitution says that "all people are by nature free and independent and have inalienable rights," which include a right to "privacy."

The courts have previously said the right of a person to marry is protected as one of those inalienable rights, Brown wrote. The question at the center of the gay marriage cases, he told the justices, "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rights secured under the state Constitution's safeguard of liberty as an 'inalienable' right may intentionally be withdrawn from a class of persons by an initiative amendment." That, he concluded, should not be allowed.

Although voters are allowed to amend other parts of the Constitution by majority vote, 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. "For we are talking, necessarily, about rights of individuals or groups against the larger community, and against the majority -- even an overwhelming majority -- of the society as a whole."

The briefs filed Friday were in response to a spate of legal challenges filed by gay rights advocates, including the cities of San Francisco and Los Angeles.

Last month, the California Supreme Court announced that it would hear arguments in the case, perhaps as soon as March. A revision of the state Constitution can go before voters only after a two-thirds vote of the Legislature or a constitutional convention. Proposition 8 was put on the ballot after a signature drive. Brown's brief also said he believes that the estimated 18,000 same-sex marriages performed from June to November should remain valid.

Because it did not trust Brown to mount a staunch defense of the proposition, the group Protect Marriage intervened in the case and filed its own brief. It argued that Proposition 8 should remain legal and that the same-sex marriages performed from June to November should no longer be recognized.

--Jessica Garrison

Photo: Los Angeles Times

Updated and edited at 6:50 p.m.

Comments () | Archives (124)

Good For Jerry Brown, It's the duty of an Attorney General to do what is right. I hope the Supreme Court is listening...

Thank you Jerry Brown for defending the thousands of Californians who had their rights stripped from them by a slim majority vote. Thank you for not bowing down to the out-of-state special interest groups who have been fighting diligently to enshrine bigotry into our state Constitution. It takes courage and a strong back-bone to defend the rights, even if unpopular. I strongly believe that history will show Jerry Brown to be a historical figure who helped bring about equality in our great country.

I think it would be extremely problematic for any constitutional court to allow a simple majority to eliminate constitutional rights of a protected group (a suspect class). The very essence of a constitutional court is to protect and uphold the constitution. A revision of the California Constitution cannot be put to voters without first securing a supermajority in the legislative. Prop 8 was never put to the legislative. If Prop 8 was allowed to stand, this would set a precedent for the elimination of other constitutional rights. California has one of the most respected state constitutional courts. I believe this court will protect the constitution and the rule of law. In 50 years, we will all look back and wonder anyone could have ever disagreed that discrimination is not only wrong but also unconstitutional.

"All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression."
- Thomas Jefferson, the third President of the United States, the principal author of the Declaration of Independence, and one of the most influential Founding Fathers

GOOD. I just wonder if these "will of the people" people would be shouting the will of the people if THEIR rights were stripped away?

I opposed Proposition 8, but Brown's argument is truly stupid and would endanger lots of middle-of-the-road provisions added to the California Constitution by past ballot initiatives.

The ballot initiatives that limited forced busing also limited what the California courts (misguidedly) claimed was a fundamental right of minorities.

The ballot initiative reinstating the death penalty in the 1970s overturned a California Supreme Court ruling that claimed falsely that the death penalty infringed a fundamental right.

If Brown's argument is accepted, democracy itself will be at risk, since nothing important will be able to be decided by voters.

Opponents of Prop. 8 should push for its future repeal by ballot initiative, not endorse loopy legal challenges that could backfire and undermine democracy.

The justices of the California Supreme Court does not make law - although they may try.

There is no right for any two people to marry other than a man and a wife (femaile) . That is a fact.

If the powers that be want to change the Constitution they need to go through the process whereby the people vote on it and either change it or they don't. (remember We the People?).

What we the people of the State of California did recently was not to change the Constitution but merely to reiterate and slap the faces of the Supremem Court justices and many of our ELECTED representatives in their faces as well.

If Jerry Brown is red faced it's because the State of California, the people slapped him in the face politically. They embarrassed this weasel and pawn. It's funny.

What the Cal. Supreme Court did was ILLEGAL and the justices should be fired for that. The sooner the better.

We can always find other people to do the job.

Brown should be removed from office for violatiing his oath. When does his recall begin?

As Attorney General, Brown's job is to uphold the law in this state. That includes the propositions voted in by the PEOPLE. Prop 8 was passed by a majority of voters in this state. Regardless of his personal feelings, it is his job to uphold the law. Never mind the fact that marriage has been between a man and a woman throughout history. The idea of a man marrying a man or a woman marrying a woman is ludicrous. 50 years from now, people will look back on this and laugh that our society would even consider such a thing.

You think Jerry Brown is doing the the right thing when PROP 8 won by the people. Jerry Brown as Attorney General has to UP HOLD THE LAW if he likes the law or not. I guess millions of voters (WE THE PEOPLE) will be disenfranchised by their vote being taken away. The California Supreme court the first time should have never overthrown the voters in the first place. Since you poeple do not know the law and/or Consitution, there is separation of powers and it is NOT WE THE JUDGE, OR WE THE POLICTIANS, it is WE THE PEOPLE. Just because you do not like the outcome doesn't mean it should be invalid. The only way you can win is using corrupted judges, lawyers who undermine the laws of our country. I guess it is O.K. that Barack Hussein Obama citizenship is questioned that you feel it is o.k. not to check, because you agree with his win by guess what (WE THE PEOPLE). It seem Democrats who break laws always get away with it, but if it was a Republican then all of the Dems say put them away for breaking the law. The California Supreme court has no right to invalidate the voters of PROP 8, because it is a Constitutional admendment and it should take effect. Otherwise why vote, you might as well have a the JUDGES pass laws and leave the people out of it. Just because California has been taken over by Democrats who have no respect for the law and who themselves are corrupted by arrogance and who they have paid off the judges of the Supreme court. We are a country of LAWS, if you only believe in some laws that favor you and not the others, then you do not have any principals and/or character because you the people who want to destroy our LAWS including Jerry Brown, Arnold, etc are nothing more then crminals and low-life themselves are nothing more than brining back the old Soviet here in California. California as far as I am concerned is a Marxist state of crimnals and corrupted politicans who believe they are themselves GODS.

King George of the California Supreme Court not only disavowed centuries of American tradition, but also Milennia of Western Civlization, when he arogantly decided that all of a sudden the California Constitution was such an evil document that it required the promotion of same-sex marriage.
Christians have had their rights stripped away nearly on an annual basis. Don't tell me about having actual rights stripped away. There has never been any culture that has condoned same-sex marriage. Why should we set new trends from immorality? Haven't we heard of Sodom and Gommorah?

The people have spoken and the term "marriage" is a contract between a man and a woman. I do not mind civil unions for my gay friends, and I encourage love and togetherness. You don't need to change anything. I am surprised that someone is paying attention to Jerry Brown again!

When was marriage determined to be a "right"? Because 4 unelected, unaccountable partisan liberals on a court say it is? If it's a "right", why do you have to apply to the state for a license? I guess my sister and I have the same "right" to get married to each other. After all, incest is best...

Great, buy why both having votes on such issues anymore if the results will only be accepted if they go the "right" way. What if the results would have gone the other way ? Would the losing side have been expected to just shut up and accept the results ? Obviously the people against prop 8 thought they would win and it would be over, but now that they lost they don't want to accept the result. They should have contested the whole vote in the first place and used the constitutional argument before....rather than later when they lost.

Keep in mind i support gay rights....but I have to be honest with you, at this point the whole gay marrige issue is troublesome for me personally. I just think they are pushing to hard to fast....society will change if you keep "leaning on it"....but if you go to fast you may lose it all.

What a blow to morality. This is disgusting.

The people voted and Brown must resign as AG. He is sworn to defend the state. He is a nut and a political slimeball. Brown will cause a revolutin and a civil war. The people are tired of left wing hacks stealing their vote. Judges are not above the law or will of the people.

The logic of Jerry Brown is amazing . Its unbelievable what drugs can due to increase the clarity of the mind and elinlighten people to things hidden from mere mortals. By his thinking we can take his logic to the next step and allow marriage between 3 men and 2 women or 5 women and 1 man. We can allow a woman and an infant or a man and a 10 year old to marry. Why discriminate against them? Lets bring it up a level and go inter-species. men and sheep, women and horses. Oh!! The possibilites are endless. Why even have marriage at all it is too confining and restrictive. Lets just do away with it. Hey we have just achieved the ultimate solution and guess what, Gay and Lesbians are already there. They were so far ahead of us and we did't even notice. Thank goodness for them dragging us through this convuluted thought process to help us reach this ultimate goal. Do away with marriage and do who ever or what ever you want. Whow totally enlightening.

all people, all races, all sexes may marry-there is no discrimination at all. what is not liked is that marriage must be to the opposite sex.

My marriage doesn't need protection.

Certainly not from a group that has a religious agenda that insists legislating articles of a faith that I do not accept. This is just a ploy to establish control of the political process - it is unacceptable, not wanted and something that needs to be highlighted as a hate crime.

How something like this makes it to a vote is astonishing to me. Can there really be that many stupid, spiteful people?

Jerry Brown,a stupid prez. candidate and an even dumber AG!!
Guess what people over 52% said NO to gay marriage no matter how much you stomp your foot or have a hissy fit
You don't have "right" to marry, Mary......You only have a right to Life, Liberty and the PURSUIT of Happiness. Got that? If not too bad.....

Does Jerry Brown really think the gay vote amounts to anything more than a hill of beans? I mean, there is no right to same-sex "marriage".

This isn't an issue of rights. It is ridiculous that argument has been so embraced and drilled. No ones existing right to marry a consenting adult family member of the opposite sex has been taken away. This is all about the definition of a word. What do you call the highest union a man and woman can form, not only as companions with each other but also to create and raise children - marriage. What do you call something similar for two men or two women? Don't know, but come up with the term.

Absolutely outrageous.

If the will of the people can be cynically ignored and flouted by an elitist class of political activists and their sympathizers, then we no longer have a sovereign electorate in California, and a dictatorship of cultural revoutionaries has seized control of this State.

This is truly shocking news.

It may well be time for the voters of California to begin to prepare a public answer to the evil usurpation of our sovereignty by disgraceful betrayers of the public trust such as Jerry Brown.

7 million Californians voted for Prop 8.

I suspect the time is approaching when we are going to have to recognize that this matter has become a direct threat to the sovereignty and freedom of every California voter.

If we the people are going to sit back and allow an elected Attorney General to argue AGAINST US on OUR DIME, then democracy and representative government are dead in California.

Jerry Brown must be removed from office, regardless of the outcome of the Prop 8 challenges.

It is time for the victorious majority, which has remained silent and trusted in the democratic process, to recognize that process is being disgracefully hijacked and perverted by our very own elected public servants.

I am so tired of this. I am tired of hearing the same old invalid, illogical, irrational argument over and over and over, that same sex marriage is a "right".

I am curious - who established this "inalienable, fundamental right"? Where did it come from that it is now being imposed against the will of the people?

Let me state it once and for all:

Homosexuals have the EXACT same rights as everyone else.

That's right - the same rights as you and me. The same right to free speech, the same right to marriage, the same right to everything.

"But they can't MARRY who they love!!"

So what? Neither can I. I love my son, my mother, my Macbook Pro, but I can't marry them. Big deal, neither can anyone else - why? - because we all have the SAME rights. So please, don't talk to me about someone's inalienable rights unless you can tell me where it came from and on who's authority.

Oh - and by the way, this also has absolutely nothing to do with equality (like I just said, we are already all equal - see above) or discrimination (a meaningless term that is somehow intended to make the "discriminator" feel guilty). This is about one thing - acceptance. That's in. A segment of the homosexual community is throwing a temper tantrum because not everyone agrees with their lifestyle. So they use improperly use words like homophobic, bigot, or even racist (ha!) to pressure those who disagree with them into accepting their behavior.

Here's the problem: it's my RIGHT to disagree with your actions. It's my RIGHT to think what you do is immoral. And it is my lawful, fundamental, God-given, inalienable right to VOTE AGAINST IT! And if you don't like it, then how about we do what our founding fathers did - have logical, intellectual discourse in effort to bring about resolution. If that doesn't work, then we each vote our conscience and go our separate ways.

"Always vote for principle, though you may vote alone, and you may cherish the sweetest reflection that your vote is never lost." - John Quincy Adams

And please, for the love of all that's holy, spare me the "religious bigot" nonsense unless you are capable of making at least a *marginally* logical argument, otherwise you will prove nothing except your failure to answer on rational grounds.

IMPEACH BROWN!!!! Brown has failed the live up to his Oath of Office that REQUIRES him to ENFORCE the laws of the State of California.

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