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rights secured under the state Constitution's safeguard of liberty as an 'inalienable' right may intentionally be withdrawn from a class of persons by an initiative amendment."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

Mr. Brown's interpretation of Inalienable Civil Rights is logical and consistent with earlier law interpretation. It is also in tune with legal thinking about the theme internationally. Without much ado the supreme court in South Africa decided a few years ago that gay marriage is such a right and must be given to the actual minority. It cannot be voted away by the majority. Such voting that may result in depriving a minority group of rights other people have, is mock democracy. It should not be tolerated in the 21. century. Religion must be private. Civil rights and duties must be public and the same for all.

If the majority had been allowed to perpetuate their prejudices through voting on every civil right issue, the US would probably still have slavery as an institution and South Africa would still have the Apartheid system.


NON amendment questions should be passed by AT LEAST 51% NOT 50.001% AND THE UPPER NUMBER REQUIREMENT IS NOT BE GREATER THAN 66% OF VOTERS WHO VOTE although more than that can vote for the question.

The only right the homosexual agitators (as opposed to the civilized homosexual individuals) are interested in is their self perceived right to bastardize the English language by the redefinition of terms (in this case marriage) and force the overwhelming majority to accept that bastardization. They are not "gay". nor are heterosexuals "straight" (most have a slight upward curve). Who gave them the right to hurl that epithet at heterosexuals any way.
The argument that they are not allowed to serve in the military is in no way affected by the definition of the term marriage. Nor are any of the real inequalities that are cited.
It is well known that Jerry Brown was called "moonbeam" because of the, apparently correct, assesment that there was something wrong with his mind. His father, Pat Brown, expressed that opinion to myself and my wife in Burbank airport after she saved his life by performing a Heimlich maneuver on him many years back. Nothing has changed. Jerry is still unstable and appears to have a dysfunctional reality testing capability.

So why bother to vote!!

Brown is a bad person. He doesn't care about rights, he just wants to position himself to run for governor. His father must be turning in his grave.
He ran Oakland futher into the ground, and he will do the same to California.

I think a lot of folks are missing the real issue here. In Jerry Brown's current position it is his duty to uphold and defend the laws of California. If he wants to work to overturn them, then he needs to get a new job. Just in the same way, if the president orders the military to do something, a general cannot disobey that order. It's his duty to carry it out. Perhaps Jerry could have mounted an incompetent or half-hearted defense of the law, but to actively work for it's overturn sets a worrisome precedent.

A very heavy gay presence here for a group that constitutes just 3 per cent of the population. Without the Times acting as a cheerleader. I doubt we'd be hearing so much from them. A homosexual "right" to marriage was unknown before it was discovered by an activist judiciary, many of whose members were spawned by earlier careers in the grievance industry.

Please stop whining all you opponents of Prop 8. Your rights were not stripped away! Get a grip. This is America, and you have the same rights I do (I'm a straight, white male). You are ridiculous, carrying on this way. Thank God the people of California who voted to change the constitution and send you away for good have the best interest of society at heart - unlike the gay "marriage" crowd, who are unbelievably selfish and think only of themselves.

Opposition to gay marriage is based on religion; their god doesn't approve. Since we are supposed to have separation of church and state, it should be invalidated.

Two key points/issues/questions: 1) Has Brown violated his obligation to carry out the duties of the AG? Article V (Section 13) of the California State Constitution lays down the duties and responsibilities of the California Attorney General. The premier responsibility of California's Attorney General is to ensure the uniform and proper implementation and execution of state laws. When a law passed through the popular vote involves the amount of controversy, debate, and polarization we've seen with Proposition 8, this calls into question the extent of the law's scope and its uniformity with adjuncts, case law and the Constitution itself. Its impact in terms of the voice of the minority, separation of church and state, and allowable forums/issues to be decided solely by popular vote calls into question when it is appropriate for the Legislature and/or SC to intervene or override [see 1894's (Livermore v. Waite, 102 Cal.113]. Clearly Brown's acumen has determined that the issues here are substantive and broad enough in scope to warrant consideration by entities more erudite and otherwise able than the lowest common denominator. That is his right as AG when the enacted amendments are in need of reconsideration as inherently contradictory or potentially paradoxical. Does this lend itself to meritocracy? Absolutely, and I say more power to those who know what the **** they're talking about and are qualified to carry out reason in its best sense accordingly.
2) Why was Proposition 8 ever in existence? At issue is whether marriage should even be remotely within the governmental domain. Its religious relevance spilled over into codification. Send it out of secularity and afford the right of unions in its wake to anyone who can demonstrate the presence of mind and means to enter civilly. Unit of measure? That, alas, is another issue altogether.

The idea that there is a constitutional right to sodomite marriage is foolishness created out of whole cloth by a judiciary bent on fabricating pretended rights rather than interpreting laws. Sodomy is a particularly destructive form of wickedness that no sane society should tolerate. Though sodomites whine and simper about their rights the truth is sodomy is a destroyer of inalienable rights. Wherever sodomite depravity comes to power, freedom of speech, religion, association, and conscience are crushed under the weight of pro-sodomite laws. Liberty under law cannot and will not survive acceptance of sodomy and lesbianism. This is an incontrovertible lesson of history. The citizens of California have made this clear time and time that they understand the dangers and threat posed by acceptance of sodomy and lesbianism. It is clear that the sodomite advocacy will not rest until they have amassed for themselves massive undeserved privileges and outlawed all dissent against the insanity of their peculiar species of depravity.

I can see no logic in elevating persons who vote with their genitalia as "superior" to those who valule the sacredness of marriage between a man and a woman. A choice as to how they are going to "scratch the itch" does not justify the harmful license of redefining the sacrament of marriage. Mr Moonbeam can toss his fairy dust wide and far; it doesn't change the biological facts.

What a joke to our democracy. So twice the people of California have spoken in the past decade and twice their voices have been silenced by liberals and an activist judicial system? Wow, this country is being run by a minority willing to force its agenda onto the majority. A civil war is brewing in this country and more stupid decisions by elected leaders, like Brown, only fuel the fire even more.

The majority have spoke -- AGAIN. Let democracy run its Consitutional course! This nation's founding fathers are spinning in their graves.

Marriage is a privilege, not a right. Even some of your Hollywood gay producers apparently think so. Reference: Queer as Folk, Season 2, Episode 1, wedding scene, starting at the 0:24:14 mark, Lindsay (Thea Gill) says "To stand in front of your family and friends, and to declare your love and commitment in the eyes of God and the law is a privilege not to be taken lightly."

Marriage is a social construct that helps further the well being of society. Society licenses this activity so as to ensure the well being of its members and itself, just as it licenses other activities that it believes need to be controlled if they are to benefit or not harm the same, such as alcohol sales, hunting and fishing, the operation of business, or the practice of medicine or law.

Alcohol sold without any societal control has the potential to harm society, so those who wish to sell alcohol must apply and be approved for a license, and then operate with the restraints of it.

Over-fishing or over-hunting of wild animals has the potential to harm society by denying it the benefit of nature's gifts. Business operators left to their own devices could operate in ways that would endanger members of the society. The same is true of practitioners of medicine and law.

Unrestrained marriage could similarly pose a danger to the well being of society. Incestuous marriages produce weakened human offspring, which clearly harms society and thus is not allowed.

At this time in our society, the majority of people have expressed that they feel that allowing same-sex couples to "marry", in the same social and legal sense as most (but not all, it should not be forgotten) heterosexual couples are eligible to does not promote the well being of our society. They do not wish to grant license to this behavior at this time.

I suggest efforts should be put toward persuading the people of this society that "same sex marriage" furthers the well being of the group, or at least does not harm it, - - not toward forcing this upon the people through legal maneuvers that leaves them feeling ill will toward the gay community. Offensive riots in response to the expressed will of the people in a vote does little to further gays full acceptance into society. Upstanding living would have far better, actual acceptance.

It seems that everyone I have heard that supports Prop 8 is incapable of understanding the very nature of our Constitutional system. To brush off an assault on Equal Protection as the "voice of the majority" is to undermine the very protections that were so brilliantly woven into the Constitutional framework and later reaffirmed by Amendments to the Federal Constitution.

The very notion of majority rule was intentionally reigned in by Constitutional protections from the very start. A politically and religiously diverse group the Founders realized that the Tyranny of the Majority was the biggest single threat to the survival of the new Republic. Therefore, they purposely made it very difficult to limit or eliminate the rights of any one group of citizens.

The California Supreme Court ruling in March made it very clear that their decision to allow gay marriage was based on the principle of equal rights, a principal that once was applied only to white males yet which has subsequently been broadened to include every segment of the population. Never before has the reach of equal rights been expanded then subsequently contracted. And clearly that such an unprecedented elimination of current rights be achieved through a mere majority vote makes it all the more abhorrent and breathtakingly un-American. This is precisely the type of majority bullying that the State and Federal Constitutions exist to prevent.

To all you citizens who have so little appreciation of our nation's history and Constitutional traditions as to proclaim that "the people have spoken" and to thus expect that the issue should be laid to rest, you really should be ashamed of yourselves. If you are going to be so bold as to support the abrogation of minority rights, then at least take the time to learn how our state and our nation's Constitutional frameworks function before doing so.

How high a percentage of the vote would the desegregation of public schools received in the year of Brown vs. Board of Education? How high a percentage of the vote would the Civil Rights Act of 1964 received?

Under our constitution, is the majority allowed to vote on what rights should be "given" to the minority?

Kudos to Jerry Brown for this courageous yet very sensible course. And if this makes some of the ultra right-wing go crazy with rage, that only reaffirms that this is the correct thing to do under our Constitution.

Someone wrote in here with a comment involving how desegregating schools would not have recieved a majority vote during the days of "Brown vs Board of Education." They are correct, but are missing the point. Proposition Eight is a constitutional amendment. If the courts have the power to overturn the Constitution then there is nothing they can not do. A court could restore segregation or even slavery simply by overturning the thirteenth amendment. It could impose a theocracy by declaring the first amendment "unconstitutional." I realize that what is going on in California involves the state Constitution and is somewhat different than issues involving the Constitution of the United States but the principle is the same and precedent is precedent. There has to be a point where the courts jurisdiction ends, and that point is the Constitution. If not then there is no point in having a constitution or a legislature or governor because we would be, in fact if not name, a dictatorship ruled by the courts and we would have no rights at all.

dont call it getting married if its a gay thing call it somthing else just keep Gods name out of ya's mouth b/c God dont like it so call it somthing else and dont read the bible while getting married thats just wrong and the church dont like it and God dont ether God completely messed up a town called sadom and gamora ( if thats spelled right) b/c of that type of stuff so come on man this anit even a talk about thing just keep Gods name out ya mouths and call it somthing else so we can all be happy ...... now read that

First, its a highly dangerous ascertion on the part of the CA Supreme Court to claim that they are the sole authority of the Law; above and beyond the electorate and legislative branch of government. This mindset is at the least "tyranny."

For those of you who want to win your cause at any cost, the price to be paid is much higher then the victory over the Majority. For by sacrificing the lawful right to debate and desent in an orderly manner set down by the Law, and then adhering to the descisions of a lawful vote; sacraficing that right to a few judges whom seem to believe they are answerable to no one but themselves, then you willingly place yourself under the will of a even more extreme minority.

However, the Law does provide provisions to impeach judges who abuse their powers. A lengthy process, but I suggest that an impeachment of judges who consistently overturn the will of the electorate should be a serious consideration here. In fact after their last ruling against the electorate, I am surprised this was not a consideration.

As for those of you who consistently wish to keep bringing up the Founding Fathers, and blah blah blah, about Civil Rights and etc. Never in their wildest dreams would they have ever believed it possible that there would even be such a debate. Jeffersons powdered wig would have been spinning atop of his head if there had ever been a debate about same-sex-marriage. Get a grip on reaility, homosexuals never were in the history of this nation guaranteed or afforded the right to marry a person of the same exact sex as themselves. It was considered, at the least, an unnatural thing.

This just shows me that Jerry Brown is Gay and being who he is, Gov Moonbeam and another arm of the left wing nut jobs.

People say there's nothing in the Constitution anywhere about Gay Marriage, to which I say, there was nothing about marriage being between "one man and one woman" either, (otherwise, why would there have been a call to add the words on Nov 4. 2008?) Now, if Prop 8 truly is to be taken literally & enacted as Kenneth Starr claims he would have it, this very same "clear" amendment verbiage would not only unfairly nullify 18,000 legal gay marriages; it necessarily nullifies (with equal "clarity") the validity of any & all prior/future straight divorces, too (Prop 8 "clearly" stops short of explaining "one man & one woman 'at one time'".) Hence anyone's 2nd, 3rd, 4th...etc. marriages would likewise be voided by way of Prop 8's very same "simplicity": the wording of Prop 8 implies that one man/woman couple's 1st marriage supersedes, voiding recognition of any subsequent marriage(s) or divorce settlements. Straight or Gay, Prop 8 can't/won't be applied equally, thus it MUST be stricken.

The last time a corrupt California Supreme Court over-ruled the will of the people on Constitutional grounds was when the people of the great State of California brought back the Death Penalty.

When all was said and done three California Supreme Court Justices were removed from the bench by the people and the Death Penalty was reinstated as directed by the people.

The right to life is an expressed right guaranteed in the U.S. Constitution and you people think the right to Marry - which is not expressed - outweighs the right to life?

"... So that government of the PEOPLE by the PEOPLE and for the PEOPLE shall not perish from this earth." Abraham Lincoln

Homosexuality is a choice made by less then 3 percent of the population and in California .1 percent of the population has demanded that the other 99.9% of the population bow to their will. For those of you siding with .1% of the population in their efforts to deny the right of the people to govern themselves; I will see you on the front lines - it will be a very short war.

So for thousands of years, people have had an incorrect understanding of what the word marriage means? Is that essentially what the pro same sex marriage lobby says? Marriage may be a right/responsibility in this country, but what IS marriage? All Prop 8 did was clarify the definition (which until recently was not questioned) of the word marriage. It did not take away rights. We all have the exact same rights and limitations as they pertain to marriage. Marriage has never been any two people who love each other. It is the joining of a man and a woman which will quite possibly bring forth children (not possible for a M/M or F/F relationship without unnatural intervention).

I do not hate or fear homosexuals, but I do believe homosexual behavior is sexual sin. I suspect that if you disagree with me, you likely consider my judgement against homosexual behavior sinful or wrong. I do not take it personally that you think I am wrong so try to extend me the same courtesy. Will I, and others who understand that homosexual behavior is sinful, be allowed the constitutional right to freedom of religion or will our churches be pressured to change their theology or be guilty of hate speech and discrimination when they proclaim Biblical truth? Can anybody put that fear to rest?

Jerry(moonbeam)Brown the liberal demacratic idiot who tried to get hanoi jane as arts commisioner and appointed the infamous ROSE BIRD as cheif justice and left california with that notorious CHARLES MANSON and still he proves that he is a absolute idiot

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