Jerry Brown's reverse on gay-marriage ban: Is it a game-changer?

Atty. Gen. Jerry Brown's reversal on Proposition 8 -- he now is asking the California Supreme Court to reject it -- is the talk of the blog world today. Of course, the pro-gay-marriage forces are happy. But there is a lot of debate about whether Brown's rejection of the voters' will on gay marriage can fly. Jonathan Turley writes:

Brown's position between the earlier and current litigation seems hopelessly conflicted. It would have been more consistent if he refused to defend either the earlier law or current law. Yet, there is the problem of lawyers defending a law that they consider to be unconstitutional. Brown can argue that, once the Court recognize the constitutional right of same-sex couples in the Constitution, it became a problem to have it set aside by popular vote. The earlier law was the result of legislative consensus while this is the product of popular vote. Yet, there status as "law" is the same for the purposes of the Attorney General's office.

Red County California sees a political motive in Brown's stance:

Jerry Brown, as the California State Attorney General, said that he would defend Proposition 8 if it passed. He is now asking those same black-robed dictators to declare Proposition 8 unconstitutional. Heck of a democratic state we live in, when an attorney general with an eye on the next gubernatorial race will pander to an activist voting bloc to thwart the democratic process dutifully followed by a majority of citizens to express their will multiple times and in multiple ways.

-- Shelby Grad

Comments

[Tammie]

Wait, I thought I lived in a constitutional republic, not some ancient democracy that lacked checks and balances and eventually imploded on itself when 49% of the people got sick and tired of 51% of the people voting rights away. And I also thought that my fellow Americans were all educated enough to know this and appreciate what we have here in this country, but I guess I am wrong. If people think that you can just vote other people's marriages away, who will be next?

I'm tired of hearing the ridiculous "slippery slope" arguments to incest, polygamy and bestiality. When the American Academy of Pediatrics, American Psychiatric Association, American Psychological Association, and other accredited health organizations decide, on the basis of decades of research and empirical evidence, that those types of relationships are healthy (which will be when hell freezes over), then maybe all you Yes voters can legitimately be worried. The fact that people would even make such comparisons proves their bigotry. Our government can expand and limit rights based on such research and it has. If rights were absolute, we might all be free to have bazookas in our homes. Legalizing same-sex marriage not only upholds the freedom of marry for all, but affirms what we value in our society: love, commitment, stability, and family. Everyone should have the right to marry the person they love, settle down, and raise a family, and their families should have the same legal status and protections as the rest of us straight people. In fact, we should encourage it. If 18,000 marriages and the family and friends who witnessed the joy and happiness of those marriages mean nothing to you people, then how sad... that we have to share our country with people like you.

[Jenny]

David Blackburn, and what do you base that claim upon? No one in California, or the US government, no member of the judiciary or anyone else could ever ban marriage. The US Constitution protects the religious, and in fact guarantees the religious free expression.

Why not bury your head in the sand again, because you clearly have no comprehension of reality. Prop 8 is valid and constitutional, and Jerry Brown was always going to attempt to invalidate it. It's the reason why Prop 8's supporters refused to alllow him to represent their side, the man is a corrupt public official, he's a nazi.

[Kate O'Hanlan, MD]

The American Psychiatric Association has confirmed that sexual orientation is natural, biologically induced, morally neutral, immutable, neither contagious nor learned, and has no relation to an individuals ability to form deep and lasting relationships, to parent children, to work, or to contribute to society. The American Academy of Pediatrics, the American Psychological Association, and the American Psychiatric Association have all endorsed civil marriage for same sex couples because marriage strengthens the mental and physical health and the longevity of couples, and provides greater legal and financial security for children, parents, and seniors.
When Americas premier child and mental health associations and their expert panels endorse marriage equality, there is thus no ethical reason to discriminate against gay people and their children.
We have to realize: 3% of every generation, of every culture, in every state, of every country will grow up and realize that they are gay.
The question that we need to ask ourselves is: what are we doing to make our world a safer and more welcoming place for ALL OUR CHILDREN?
Kate O'Hanlan, MD

[echo]

Ha, the Prop 8 supporters lost their presidential candidate, and now they are going to lose Prop 8. It is truly a time of hope and change in America.

[Adrian]

Hallelujah, Praise the Lord. My prayer is answered. God has open the eyes of Mr. Attorney General Jerry Brown. Discrimination and "distorted" moral values of some religious freaks should never ever been shoved into a law. Otherwise, injustice and violation of human rights will destroy our system. Democracy should not conflict with minority's rights. God Bless America.

[Fair minded]

GLBT folks are a persecuted minority. It is a historical fact. And it is still true in much of the 3rd world -- and here in the US. Look at the recent vote in the UN about the decriminalization of homosexuality. Look at who wouldn't sign the document. Only 3 nations in Africa signed. Only a few nations in Asia signed it. Why? Because GLBT folks have historically been a persecuted minority. This is still true. Here in the US, GLBT continue to be persecuted in the context of our social fabric -- even in much of California.
Marriage is both a religious ritual and a state sanctioned recognition of a family unit. It is the state recognition of the family unit that must be extended to the GLBT community. And the religious organizations have ignored the motivation and intent of the separation of church and state over the years to influence our local, state, and federal governments to pass laws giving favor to married couples. These legal advantages are woven into our social fabric in a pervasive way that really cannot be undone. There is only one just solution, equal protection requires the state extend marriage rights to GLBT folks.
GLBT same sex marriage is so important to finally integrating the GLBT community into the fabric of society in a way that extends full rights and mutual respect for all our citizens. It's the linchpin. Give the GLBT community the opportunity to proudly bring their family unit into the mainstream community fabric. This is the struggle that everyone needs to stay focused on. Accept no compromise on same sex marriage -- because separate but equal has proven to be unworkable everywhere the government has tried it.
AG Brown has made the right and just decision in recommending the court rule prop 8 unconstitutional. Equal protection cannot be negated by a popular vote. Anyone who cannot see this is clearly suffering with clouded vision that is rooted in bigotry. Those afflicted by bigotry are least likely to recognize it as such.

[Fair minded]

GLBT folks are a persecuted minority. It is a historical fact. And it is still true in much of the 3rd world -- and here in the US. Look at the recent vote in the UN about the decriminalization of homosexuality. Look at who wouldn't sign the document. Only 3 nations in Africa signed. Only a few nations in Asia signed it. Why? Because GLBT folks have historically been a persecuted minority. This is still true. Here in the US, GLBT continue to be persecuted in the context of our social fabric -- even in much of California.
Marriage is both a religious ritual and a state sanctioned recognition of a family unit. It is the state recognition of the family unit that must be extended to the GLBT community. And the religious organizations have ignored the motivation and intent of the separation of church and state over the years to influence our local, state, and federal governments to pass laws giving favor to married couples. These legal advantages are woven into our social fabric in a pervasive way that really cannot be undone. There is only one just solution, equal protection requires the state extend marriage rights to GLBT folks.
GLBT same sex marriage is so important to finally integrating the GLBT community into the fabric of society in a way that extends full rights and mutual respect for all our citizens. It's the linchpin. Give the GLBT community the opportunity to proudly bring their family unit into the mainstream community fabric. This is the struggle that everyone needs to stay focused on. Accept no compromise on same sex marriage -- because separate but equal has proven to be unworkable everywhere the government has tried it.
AG Brown has made the right and just decision in recommending the court rule prop 8 unconstitutional. Equal protection cannot be negated by a popular vote. Anyone who cannot see this is clearly suffering with clouded vision that is rooted in bigotry. Those afflicted by bigotry are least likely to recognize it as such.

[Matt(e)o]

Jerry Brown's abrupt, surprising reversal of his position on Marriage Equality may seem like a slap in the face to few (or more) Prop 8 supporters, those who have watched the State Attorney General "thwart the democratic process dutifully followed by a majority of citizens to express their will multiple times and in multiple ways" (Red County California, see article). But to we, the GLBT & Queer multitudes in California, this blatant, bold bouleversement of majority rule is matter of fact a blessing!

Television political news commentators on all major stations explained very pointedly, as soon as the first pro-equality lawsuits were filled post-Prop 8, that the only reason why GLBT Marriage Equality advocates were challenging the constitutionality of the amendment only after both camps in the controversy shelled out over $35 million each is because they were required by law to wait until the amendment had passed by popular vote before declaring it unconstitutional.

This is not breaking news! No one on either side of the conundrum should be surprised by Atty. Gen. Brown's shift in agenda and argument. He is merely reiterating (and likewise, advocating for) that for which the GLBT political pundits and parties in the suits have begun again to battle.

Jerry Brown's reversal on Marriage Equality and on the constitutionality of the Same-Sex Marriage Ban is ultimately important because of the gentleman's political influence and stature. He's the one we really need to say "No on Prop 8 | Equality for All!" in his position as the highest official of law in the State of California, so that change can begin to be affected.

With his support (and both Marriage Equality advocates & opponents are blatantly aware of this), the California GLBTQ Community is ever so much more close to winning equal rights under the law—as if those rights have to fought for in the first place, instead of being immanently & immediately granted to all persons without reprieve or contest, regardless of race, ethnicity, age, gender, class, or sexual orientation.

God Bless Atty. Gen. Jerry Brown! He may not be a stickler for sticking to his guns, but we Queer Folk love him all the same for swaying a little our way in his stance on things. This choice by Brown to argue the unconstitutionality of a Same-Sex Marriage Ban is a giant leap in the right direction for all God-fearing, committed, caring GLBT couples & families.

That's the truth! And if you can't handle the truth, then tough titties! We're gonna win this battle and defeat, once and for all, all anti-Gay Marriage rhetoric. That's the plumb, honest truth! Get used to it! All you ninnies with your fingers pressed tight against the escape button for an easy way out (and in the wrong direction)!

California should not be the third or fourth state of the Union to legalize Same-Sex Marriage; she should have been the first! For all that California stands for! For it's reputation as a trend-setter and stalwart advocate for diversity and equality! For it's bold, brave, brazen, new and oft controversial ideas & values!

California Queers UNITE! And support Attorney General Jerry Brown in his new endeavor to see the courts defeat the anti-Gay Marriage Amendment by showing your gratitude with generous involvements and tokens of appreciation. Write him a letter! Send him an email! We should tell him "Thank You! A Million Times, Thank You!"

— Matt(e)o | QHereKidSF, 29yo (San Francisco, CA)

Rock on "cwmaxson - December 20, 2008 at 11:08AM." You're right on in pointing out that "the judiciary was not set up to carry out the whims of the Majority, but to defend the rights of the Minority." Brown's argument IS valid! Cheers!

[wymck]

Flip, flop, flip, flop.

For 160 years, Californians understood what marriage was: for 160 days, more or less, there was confusion.

Now there is no doubt about the consensus viewpoint of Californians vis-a-vis gay marriage. It has been counted at the ballot box.

Democrats in the California Supreme Court imposed gay marriage on the people, and when the people rose up to put a stop to it, a Democrat attorney general named Jerry Brown urges those same Supreme Dems to review and reverse the people's decision.

Funny how the confused ruling of the Supremes half a year ago is itself the basis for overturning the people's will; and how Brown, too scared to oppose the issue on the ballot or in the Legislature, or by executive order, urges the liberal courts to have their way and spit on the people's wishes.

It's bizarre that Brown would opine in favor of gay marriage by mere virtue of the minority status of gays. People who rob banks are a minority: they don't get to overrule the Constitution, the Legislature, the courts, or the people just because there aren't very many of them; more importantly, the government has an obligation to uphold the sense of the people that robbing banks is wrong.

[John K.]

Haaaaaa, Tom Jones!

You totally had me going. I was preparing for high blood pressure as I read the first two sentences of your post. That's classic!

[Dodge Landesman]

I'm the owner and operator of Jerry Brown's Facebook page. Yesterday, we had about 45 supporter with support growing by about one person a day. Today, that number shot up to 110. His view on this is truly landmarc, and you can't hate someone for having a genius legal mind and for defending the constitution. Oftentimes, politicians are not elected for the exact qualities for the exact job they want. But Jerry Brown possesses those qualities specific for being an effective and genuinely good attorney general: a genius legal mind and a love and respect for the constitution. This is democracy at its best.

[SteveMD2]

Everything about morality, the will of the majority, protecting the sanctity of marriage, protecting children etc has been heard before in America.

These were the rallying cries against blacks being able to marry legally, women voting, ending segregation, integrating our armed forces, and forcing states via an "activist" supreme court to eliminate laws outlawing inter-racial marriage. As well as ending the hatred of the Jews, Jesus own people, encouraged by conservative relgious groups using hatred of a minority -- the oldest trick in the book, to gain political power.

And the same conservative groups / their predecessors, predicted all kinds of calamaties, which didn't happen, but yes, justice was served.

When religious leaders force their will and beliefs, however it is done,, on others by stripping those others of equal justice under the law, it is a disgrace to everything about which this country was set up to be, and yet is still struggling in some areas.

And the exposure of these conservative religious groups hatreds for all to see is what has them up in arms. For when the people in general have time to digest the idea that gay people getting married actually supports the basic institution of marriage, the bigots will be exposed, their lies will be seen as lies, and their power will end. that is what the whole battle is about.

[deBeer]

So if this is overturned, we will have polygamy? Marrying children? Marrying your sister? Marrying a sheep? Where does it stop? Where do YOU get off telling the groups above that they cannot do what makes them happy. It is THEIR right just like yours? Gotcha

[Tom Jones]

When will you people stop forcing your lifestyle on the rest of us Californians? Lead your life the way you want in private, but don't force me or my family to accept your lifestyle. You CHOSE to believe in God, you WERE NOT born that way, stop trying to make everyone believe that you were. Proposition 8 is discrimination plain and simple, it's not a moral issue, it's not a religious issue, it's a civil and human rights issue.

[Frank Lee]

Atty Gen Brown is a liar and a crony beholden to the LBGT movement - all obviously due to LGBT donated campaign money.

As the California Attorney General, Brown is required by law to defend Prop 8 which is State Law. He's reneging on his duties and should be removed from office. He's a joke.

[pat]

Bacon,
Actually, I don't believe "the people" have a right to vote on an issue such as this, otherwise, "we the people" could just as easily decide to write a prop to ban marriage between, say, people over 35... or how voting on revoking marriage licenses from couples that never have sex anymore?

Why can't people just be able to love who they love? I think if you truly loved someone, you would be able to empathize and get off your righteous sense of right and wrong. Believe me, we will "move on" and you will be left behind.

[Flex]

Good bye prop 8! All of your negative energy can go back to your creators!

[David Blackburn]

Perhaps Hon. Brown reread the Supreme Court's May 15th decision and decided that if Proposition 8 were enacted that the court could ban marriage altogether in California. They were pretty clear and people should have read it before they voted. Here is some of the text:

Just as a statute that restricted marriage only to couples of the same sex would discriminate against heterosexual persons on the basis of their heterosexual orientation, the current California statutes realistically must be viewed as discriminating against gay persons on the basis of their homosexual orientation.
-
When a statute’s differential treatment of separate categories of individuals is found to violate equal protection principles, a court must determine whether the constitutional violation should be eliminated or cured by extending to the previously excluded class the treatment or benefit that the statute affords to the included class, or alternatively should be remedied by withholding the benefit equally from both the previously included class and the excluded class.
-
… perhaps in order to emphasize and clarify that this civil institution is distinct from the religious institution of marriage — it were to assign a name other than marriage as the official designation of the family relationship for all couples.
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Whether or not the name “marriage,” in the abstract, is considered a core element of the state constitutional right to marry, one of the core elements of this fundamental right is the right of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships.
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We need not decide in this case whether the name “marriage” is invariably a core element of the state constitutional right to marry so that the state would violate a couple’s constitutional right even if — perhaps in order to emphasize and clarify that this civil institution is distinct from the religious institution of marriage — the state were to assign a name other than marriage as the official designation of the formal family relationship for all couples.

[busytimmy]

Prop 8 was and is about faith based discrimination and forcing a narrow, theological viewpoint on all Californians. The Christo-fascists are once again claiming to "know" the will of God and using that knowledge to strip their fellow citizens of their freedom and civil rights. The day that this is overturned will be a great day for human rights, freedom and love.

[Roy]

The curious thing about Brown's position....is that he claims that marriage is a "right", which any minority would be able to claim. I'm a bit doubtful that any state constitution in th US actually has a statement that says marriage is a "right". The amusing side of this entire episode is that it was only around the late 1800s that states got into this official registry of marriages with a license required and a fee paid to the county seat where the marriage would be registered.

[cwmaxson]

Brown's argument is valid. The judiciary was not set up to carry out the whims of the majority, but to defend the rights of the minority. The state has no right to legislate who can marry and who can't. Nor is it the majorities right. The constitution trumps the will of the majority. I would ask all of those who have benefited from the protection of the constitution to extend that protection to others.
You can say Brown is pandering all you want, but his argument is valid.

[Wade]

Why, oh why must the LAT open comments on every single Prop 8 piece? Pro or con, is there really anything new to say that hasn't already been said? It's no secret that our AG is a liberal Democrat (remember, he was our Governor way back when). So, if you are reading this and thinking of posting a hateful comment about gays or Mormons, see if, in the spirit of the season, you can keep it to yourself.

[Web Smith]

It's strange to be agreeing with Brown on anything.

A Republic protects the rights of individuals and the minority against the tyranny of the majority. Being free means letting others do things that you don't approve of.

While it's hard to refer to this kleptocracy as either a Democracy or a Republic, it clearly wasn't intended to be a democracy.

http://ewebsmith.com/gov/NotDemocracy.html

[Lenny]

The courts, as you call them, dictators, exist primarily to protect the rights of the minorities (rights by the way enshrined in the constitution) against tyranny by the majority (also known as despotism, of which California is not). The constitution was created by the people of California too. And instead of being created based on the contributions of a rich Mormon billionaire from Utah, it was created by slow, deliberate, thoughtful reflection and debate. The people of California cannot by a bare majority deprive a minority of a fundamental right to marry (whether you like it or not), anymore than they could, by a bare majority or any other type of majority for that matter, take away the right of blacks to marry whites. We've been down this road before, have not our prior mistakes, borne out of ignorance and bigotry, taught us nothing?

[C. Cox]

Well it is a Step in the Right Direction, hope it sticks. as It is Said. The Majority SHOULD never vote for the rights of the Minority. Once State Law said they could get marry, to put it up for a popularity Vote was just wrong.

[Neruda]

Checks and balances exist for good reasons. Among them is the protection of minorities from the tyranny of the majority. Depriving persons of equal protections and rights because of your beliefs and unyielding attachment to the way you perceive things to have always been. Whether or not one man and one woman coming together for the purposes of procreation has been the model for 1,000 years or 10,000 years doesn't make it any less exclusionary and any less marginalizing.

The idea that humanity is capable of growing in openness and wisdom is our greatest hope.

[Steven Bacon]

Jerry Brown needs to keep his mouth shut!! The MAJORITY VOTE by the people of the state of California has spoken, gay marriage is BANNED as it should be, the law defines the sanctity of marriage is between a Man and a Women...NOT 2 men or 2 women, it has been and should be that way for all time. Don't turn this into something it was NEVER intended to be for God sake,lets not destroy one of the last moral laws we have in this nation...
the PEOPLE have spoken lets move on

[boarderthom]

Apartheid: A system of laws applied to one category of citizens in order to isolate them and keep them from having privileges and opportunities given to all others.
Stop gay apartheid.