Last month, California Attorney General Jerry Brown said that he intended to defend Proposition 8, the state's ban on gay marriage passed in the November election, as reflecting the will of the people. Now, in an unexpected about-face, Brown has filed a last-minute brief with the California Supreme Court, offering a novel argument for overturning the controversial law. Brown's challenge is the latest in a series of legal actions that seek to end Proposition 8—but do any of these have a chance of prevailing?
Jerry Brown's position on Proposition 8 had been determined by state law dictating that the attorney general must uphold the laws of the state as long as it is at all reasonable to do so. Despite his personal opposition to Prop 8, Brown originally made clear that he intended to enforce that law. But since the election, Brown and his lawyers have spent weeks studying the state constitution and considering options. Now, the attorney general feels he has legal grounds to challenge the law. His late entry into the legal battles has come as a surprise to advocates on both sides of the issue, but, as Brown has said, "This analysis was not evident on the morning after the election."
Brown's legal challenge depends on the status of marriage as a right. Certain rights, according to Brown's reading of the state constitution, are deemed "inalienable". These include liberty and privacy and, according to Brown's brief, marriage has been ruled in previous decisions to be an element in the right to privacy. Given this, his 111-page brief argues, Prop 8 raises the question of "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rights secured under the state Constitution's safeguard of liberty as an 'inalienable' right may intentionally be withdrawn from a class of persons by an initiative amendment." He goes on to assert, "Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification."
In response, the pro-Prop 8 group Protect Marriage has filed a set of arguments countering Brown's challenge. They are represented by Kenneth Starr, the former Whitewater special prosecutor who is currently the dean of Pepperdine Law School. Starr's brief questions the right of the court to intervene in Prop 8's fate at all, arguing that the constitution "commands judges—as servants of the people—to bow to the will of those whom they serve—even if the substantive result of what the people have wrought in constitution-amending is deemed unenlightened." Further, he argues that Prop 8 itself carries no fundamental revisions to existing law: "It simply reinstates the traditional definition of marriage without any impact on the foundational powers of government," he wrote.
Brown's brief is the latest in a series of last-ditch legal challenges attempting to overturn Prop 8. Shortly after the election, several city governments teamed up with gay activist groups and gay and lesbian couples to file suits claiming that Prop 8, by addressing very basic rights of a minority, amounted to a revision of the constitution rather than an amendment. Since revisions follow a different (and much tougher) electoral path, requiring introduction by vote of the legislature, this re-designation would end Prop 8. Interestingly, Brown's brief rejects the revision vs. amendment argument made by other Prop 8 opponents, choosing instead to focus on the inalienability of the right Prop 8 removes, and which the state supreme court had found to be present in the constitution when they legalized same-sex marriages in May.
Unfortunately, Brown's rejection of other arguments against Prop 8 probably presages the reaction of the court, which most legal scholars think is unlikely to overturn the ballot measure on the grounds offered so far. Previous lawsuits to have amendments re-designated as revisions to the constitution have failed, including one pertaining to reinstating the death penalty. In that example, the Chief Justice of the state supreme court was eventually recalled by popular vote for continued opposition to the death penalty, a chilling example reminding us that California justices, being subject to recall, face potentially serious consequences for challenging the will of the electorate. Brown's argument has an unknown future, largely because it is such an unusual argument, one clearly put together by a legal team lacking confidence in the challenges already offered to the court. Whether his Hail Mary legal pass will succeed remains to be seen. The court will begin hearing arguments in late May, with a ruling expected within 90 days thereafter. Until then, California's gay community will have to hold its breath, and hope.