Prop. 8 battle gives Jerry Brown link to his father

SACRAMENTO -- When Gov. Jerry Brown decided he wouldn’t defend California’s ban same-sex marriage in court, he was following in the footsteps of his father, former Gov. Pat Brown.

Both men decided they wouldn’t go to bat for voter-approved measures because they considered them unconstitutional. The ballot initiatives -- Proposition 8 in 2008 and Proposition 14 in 1964 -- are the only two in California history to go undefended by state leaders.

Proposition 14 was an attempt to undo fair-housing laws championed by the elder Brown, who wanted to prevent landlords from discriminating based on race, sex and other factors.

Black residents sued after voters approved the measure, saying they were being unfairly denied housing. Brown refused to mount a legal defense of Proposition 14, and it was ruled unconstitutional by the California Supreme Court. The decision was upheld by the U.S. Supreme Court in 1967.

The battle over Proposition 8 ended differently and could affect the future of ballot initiatives in California and other states with similar systems.

Jerry Brown, both as attorney general and governor, refused to defend the ban on same-sex marriages. Neither would former Gov. Arnold Schwarzenegger or Atty. Gen. Kamala Harris.

That became a key factor in the U.S. Supreme Court’s decision on Proposition 8, which essentially voided the measure.

“We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to,” wrote Chief Justice John G. Roberts Jr. in the majority opinion. “We decline to do so for the first time here.”

Justice Anthony M. Kennedy disagreed, saying that Proposition 8 supporters should have been allowed to defend the measure in federal court.

“Such an appearance is essential to the integrity of its initiative process,” wrote Kennedy, a Sacramento native.

The Supreme Court’s decision has raised concerns that elected officials will be able to undo initiatives they don’t like simply by refusing to defend them in federal court.

Brown downplayed that question on Thursday, saying the situation was “very, very unlikely to occur again.” He added, “If it does, we’ll be able to deal with it.”

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