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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rights secured under the state Constitution's safeguard of liberty as an 'inalienable' right may intentionally be withdrawn from a class of persons by an initiative amendment."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)

I fully believe that gay couples should have the right to marry, and that Prop 8 is a hurtful and unneeded amendment. Unfortunately I can not support the court challenges or Jerry Browns actions.
It is a betrayal of democratic principal for a state supreme court to claim the right to rule the state constitution, unconstitutional. It is the courts duty to defend the constitution not rewrite it. For better or worse. Worse in my opinion. Prop 8 is now part of the California Constitution and only the US supreme court has the legal authority to rule on its constitutionality, and by current legal precedent it is not unconstitutional at that level. The only honest way to reverse Proposition Eight is through another amendment either through the legislature or the initiative process. I fully expect that the California supreme court will rule against proposition 8, but by doing so they will be betraying their oaths of office and making a mockery of the rule of law in this country. The ruling may restore fairness for gay couples, but it will destroy freedom for everyone. The ends do not justify the means when the very structure of our government is at stake.

Jerry Brown is doing exactly the same thing that he has always done: he is interpreting the law in a way that fits his skewed vision of the world. Prop 8 does NOT deprive people of the right to marry: they are perfectly free to marry...the opposite sex. As it has always been. Jerry Brown is an abomination.

Excellent!! Way to go, Jerry Brown!! And, all the excellently written comments here! Exactly! How can anyone take away the basic rights of a few?? Just because you may not agree w/pple morally or religiously or whatever, doesn't give you the right to take away their rights! And, Thomas Jefferson said it perfectly! It's reprehensible to me that this ever came up for a vote! I loved one picketer's sign: 'When do I get to vote on your marriage??' Exactly! Shame on those too narrow-minded to think outside the box and see what they're really doing!! Rock on Freedom and Liberty for All!! And, Adios Bush!! Too bad the shoe didn't make contact!!-mighta knocked some sense into that pea brain!!:)

Gays already had the same right to marry as everyone else, and they still do - the right to marry someone of the opposite sex.

So, this guy first tried to affect the outcome of the election by changing the wording on the ballot to refelct his personal opinion. Now, he tries to influence the California SC's review of the matter. My question is, how do we get him recalled? How do we remove him from office? I don't care WHAT the subject matter is, Jerry Brown is NOT fit for office. He NEEDS TO GO. NOW.

The arguments may or may not have merit, but remember, Moonbeam is running for Governor.

Now, we need the pedophiles to start screaming about their constitutional rights. And lets not forget the people who prefer to have sex with animals and any other perverted group that is out there. You have just opened the flood gates where any thing goes. I hope you can sleep at night and look at yourself in the mirror the next morning.

Speaking of the constitution in CA; I thought it was changed by the Supreme Court in favor of the homosexuals? Isn't that the way it was? Originally, there was nothing in the constitution about homosexuals. Then there was Prop 8 to get it back to one man/one woman marriage. I do believe I have voted my last vote, not that I voted on this one anyway, as it seems, our votes do not count.

Just like the school levy; they keep running it until it comes out the way they want it to.

Should we expect anything less from washed-up ultra-liberal Jerry Brown, aka Governor Moonbeam?

The 4-time loser (3 times for the democrat nominee for president, one time for U.S. senator) in the national political realm looks at this as his last great chance to make a name for himself. He's hyperventilating at the thought of having the national media pointed in his direction one last time.

One last shot at greatnes from a poor narcissistic little man. Go get 'em Jerry!!! All eyes are on YOU!!!!!

Jerry Brown tried to torpedo Prop 8 by changing the ballot description just before it went to the printers. Now, he is not doing his duty in defending the law. I don't particularly like Prop 8, but I hate officials who abuse their power of office. It sets a bad precedent that the Attorney General enforces whatever laws he/she likes regardless of the Constitutional duties of the office.

Jerry Brown, you are a fine man. Thank you for letting your conscience lead you to this action. I'm not from California, I'm not gay, but I can see the wrongness of Prop 8 from many miles away.

Horrible. This is another act that signals the breakdown of our Republic. An attorney general is supposed to defend the laws of the State irregardless of the "rightness" or "wrongness" of the law to be defended. What's next? Electing a President who is not a natural-born citizen of the Republic? Or, Sheriffs deciding on their own to not enforce laws that they do not like?

Say goodbye to the USA as we've known it.

I cannot believe the arrogance of Brown or those pushing to overturn the clear will of the people! The people of California have spoken on this issue, not once, but TWICE, and still the far-left fringe continues to silence the majority of people. If you allow "marriage" of gays then why not allow men to marry two, or three wives? Marriage is not something to be lightly changed and this is why a clear majority of Americans and people in California oppose "gay marriage". Opponents of Prop 8...you've lost, now get a life!

Why do we even bother voting on anything????

I am dismayed, but not surprised, at Attorney General Brown's actions.

I believe things would have been quite different if the Prop 8 vote had been 52% no, 48% yes. There would have been no ugly protests, no violence trying to silence others, no marching on places of worship. Those who voted in favor of Prop 8 would not have targeted individuals who voted against it. They would have shaken their heads in wonder and accepted the will of the people.

Does the vote of a gay man count more than the vote of a straight man? Does the vote of an LDS woman count less than the vote of an atheist woman? How about a Latino vote compared to a black vote? All votes carry equal weight and the votes were cast and counted. I believe that people voted thoughtfully on Prop 8 with good intentions on both sides.

I have been encouraged by recent op-ed pieces in the Times with moderate voices, speaking out against the extremists from the No on 8 side who drove people out of jobs and are hurting more moderate people who also voted No on 8.

We must realize that the people on both sides of this issue are real people. We must get beyond name calling, stereotypes, and blame. We must try to understand perspectives from both sides of the vote and consider the longterm effects of the vote and have some actual discussions, rather than hatefests.

The State and its citizens have limited what defines a "lawful marriage". The State currently prohibits marriages between members of the same family. And it has established a minimum "age of consent". Only marriages between a male human being and a female human being -- who are not otherwise unqualified -- are sanctioned.

If same-sex marriages are a constitutional right" -- because "love" "constitutionally implies the right to marry and the State has no right to limit marriages -- then people should also be able to marry their pets, their siblings, their children, or their parents. And those who marry a pet that they love more than any human should be entitled to file their income taxes as "married" and take an additional exemption credit too.

It may be politically correct to santion gay marriages. But anyone who assumes that gay marriage is a "constitution right" hasn't read the document. And they haven't taken into account the "undesirable consequences" that occur when the constituition is "broadly" interpreted.

Mr. Brown wants to take away our right to vote.

Part of the voting process means that the majority doesn't always go your way.

I support gay marriage, but I support the ballot box more strongly.

We the People spoke for a second time to say NO to Gay marriage. Jerry Brown is not the law, and either he should resign or let the will of the people remain. I am tired of the select few running this state into the ground. In this economic crisis I cannot believe that we are spending millions of dollars fighting this issue, especially when the people have spoke not once but twice on it. Perhaps if our state legislature would spend its time passing a balanced budget we could afford to visit this issue.

The processes of law to amend and revise laws and the constitution itself is established and for good reason. Imagine what would happen if a simple majority could determine all the laws: mob rule.

It seems to me that Brown is correct when it comes down to the lawfulness of the process used: "the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification."

The initiative process was abused by Prop 8 supporters.

What a civilized decision for Mr Brown to make. California is not the social equivalent of the Flat Earth Society. Let's be grown-up about facing the variations among individuals and not demonizing all normal variations.

It's the beginning of the end for Prop. 8. :)

Jerry Brown, I also don't like the results of Props 2, 3, 5, 9, and 11. Please invalidate these also. I'm sure you can find some constitutional technicality for each of these. Please tell me how to vote correctly next time so that you don't have to waste all that time and money getting the results corrected.

Thank you, Attorney General Brown, for speaking up as a voice of integrity and justice. That the basic human rights of any group should be put to a popular vote is wholly undemocratic. Thank goodness we never put interracial marriage or school desegregation or women's right to vote on the popular ballot--all changes decried by the religious right on the basis of a skewed reading of the bible and a call to maintain "tradition." I trust that the Supreme Court will recognize that any measure to amend the Constitution must follow the appropriate path through the structures and institutions of deliberative democracy.

Gays - sue to get equal rights under the law - but NOT marriage and you will win every time.

This only adds to the convincing argument to overturn proposition 8.

To KevinA:

Actually, gays and lesbians DON'T have EXACTLY the same rights as straight Americans do. I'm not sure where you got that, but it's incorrect. Homosexuals are not allowed to be in the military, and they're not allowed to adopt children in most states. They're also called "disgusting," "immoral," "wrong," told they're "going to hell," and so on. Being told they're not only not allowed to have the same rights, but they're also going to end up in hell I think is a pretty mean and heartless thing to tell someone.

Get your facts straight (no pun intended) and stop spreading hate out of your own annoyance or fear.

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