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Jerry Brown's Proposition 8 stance faults legal arguments of gay marriage backers

California Atty. Gen. Jerry Brown’s decision to ask the Supreme Court to overturn the state’s ban on same-sex marriage has been widely hailed as a victory in the fight for gay rights.

But far less attention has been paid to Brown’s lengthy written rejection of some of the principal legal theories put forth by gay marriage advocates in their bid to roll back Proposition 8. In his brief filed on Friday, Brown said he believed a ban on same-sex marriage undermined fundamental liberties enshrined in California’s Constitution.

But the larger chunk of his 111-page legal filing was devoted to shooting down a more technical legal argument used by gay marriage supporters. Brown said attorneys challenging the measure had “failed” to prove their point that the ballot measure offers such a major revision to the state Constitution that it cannot be enacted by a voter-approved initiative alone.

Brown’s decision to throw the weight of his office behind gay marriage has sparked debate over whether his arguments will actually do more harm than good for those hoping to overturn the initiative. Some opponents of gay marriage say they are relieved that Brown, who personally supports gay marriage, did an about-face and will not be offering a half-hearted defense of the initiative before the Supreme Court. At the same time, they say, Brown’s legal position helps undermine a key claim that voters alone cannot decide an issue that makes such a major change to the state’s Constitution.

“That’s game, set and match,” said John C. Eastman, a director of the conservative Center for Constitutional Jurisprudence at the Claremont Institute, who plans to file a brief supporting the ballot measure. “I think he has greatly bolstered the arguments of the Prop. 8 folks.”

Other experts, however, say Brown has carefully forged a novel legal path that the state’s highest court could follow to overturn the initiative. That could be particularly important if the justices reject the other arguments offered by opponents of the measure. “Strategically, I think it’s a clever move,” said Jesse H. Choper, a professor of law at UC Berkeley.

“It gives the California Supreme Court another way to invalidate Prop. 8.” Immediately after the Nov. 4 election, Brown pledged to defend the initiative, saying he believed it was a properly approved amendment to the Constitution.

In an interview Tuesday, Brown said he changed course after attorneys in his office examined all the legal implications of the measure. He said he was particularly struck by the idea that a ban on same-sex marriage conflicted with the Constitution’s language protecting liberty, which he said the Supreme Court ruled earlier this year included the right to marry.

“The more I reflected on the argument, the stronger I thought it was,” he said. “What is a guarantee worth if you can strip it away by calling it an amendment?” he said.

--Jack Leonard and Victoria Kim

Photo: Los Angeles Times

Comments () | Archives (29)

To those of you that voted against Prop 8, I have a question:

Would you advocate discrimination against other sexual minorities such as pedophiles and polygamists in awarding the fundamental "right" of marriage?

I read somewhere along this post that "foolish judges" may not overturn the will of the voters.
What?! Foolish judges???
Do you even know how much training, education, and experience they have before you can walk up to them and have the audacity to call them foolish? Respect the forces you have yet to master buddy. Get a proper education at a top tier university before you can come back on here and comment on others' value in society.

Those same "foolish judges" are what your average parents have always wanted your average self to be, but you couldn't manage to become.

To Aaron:

First of all, pedophiles are sexual deviants. Gay people are not. We don't do it with children (or animals!). It is something that occurs between consenting adults.

As for polygamists, why on earth should you care if 3 or 4 or 22 people want to be married to each other? It doesn't affect your life in the slightest, unless you're perverted enough to overly concern yourself with what other adults do with their genitalia. It doesn't destroy society or the family - polygamist societies flourished here in the U.S. during the 19th century.


A few comments:

1) The Supreme Court declared gay marriage to be subject to Article I and therefore in some ways "inalienable." This decision predated Prop 8.

2) A founding principle of the United States of America is to prevent the "Tyranny of the Majority". A majority should not be allowed to remove an inalienable right(as interpreted by the court, that is their role in America), without due cause.

3) To remove the right, the Prop 8 supporters need to show that it is in the state's interest to prohibit gay marriage. Honestly, beyond the bible this doesn't stand the laugh test. There is far more evidence of certain inter-racial, inter-ethnic, or impoverished families having domestic/child-abuse/family problems than from the domestic partnerships that exist in America today. If you try to use the data about children of homosexual couples being messed up as justification, you will also need to ban marriage of anyone that is poor. Poverty is much more detrimental to a child's development than gay marriage, etc.

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