Proposition 8 supporters fight back

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Gay-marriage opponents filed legal briefs Monday accusing California Atty. Gen. Jerry Brown of having “invented an entirely new theory,” one that “fails at every level,” in his quest to find a reason to invalidate Proposition 8, which passed with 52% of the vote in November.

“The people have the final word on what the California Constitution says,” lawyers for the Protect Marriage Coalition wrote. “The practical result of the attorney general’s theory is that the people can never amend the Constitution to overrule judicial interpretations of inalienable rights.”

The filing, which was co-written by Whitewater prosecutor and Pepperdine Law School Dean Kenneth Starr, came in response to a brief filed two weeks ago by the attorney general in which Brown surprised legal experts with a novel theory to argue that Proposition 8 should be invalidated.


Brown’s theory, Starr wrote, is “utterly without foundation in this court’s case law” and “is not only unprecedented but contradicts the most basic understanding of the role of the judiciary in a constitutional democracy.”

The attorney general has a legal duty to uphold state laws, and Brown, though he personally supports same-sex marriage, had pledged to defend Proposition 8 after gay-rights activists and California cities filed lawsuits challenging it the day after the election.

But in a move that outraged supporters of Proposition 8 and took even gay-rights activists by surprise, Brown’s brief instead urged the court to toss the proposition, declaring that “the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification.” Brown argued that the California Constitution protects the right to marry as inalienable.

Legal experts said Starr and the Protect Marriage coalition had made a strong counter-argument in their filing Monday.

Santa Clara University Law professor Gerald Uelmen, an expert on the state high court, said it “hits the nail on the head.”

“If you think of the Constitution as a compact between the people and those who govern us, to say the people have no power to amend a court’s ruling simply because the court . . . says this is an inalienable right -- I think that is pretty far out.”


Monday’s legal filing came because the court gave permission for supporters of Proposition 8 to file responses to Brown’s brief.

The court will consider the briefings and could hear oral arguments as soon as March.

Opponents of the measure, including Lambda Legal and the National Center for Lesbian Rights, also filed briefs Monday. They agreed with Brown that Proposition 8 should be invalidated, but differed with the attorney general on the question of whether the proposition was enacted properly.

In their lawsuits, gay-rights activists had argued that the measure should be rejected because it was a revision of the Constitution instead of a more limited amendment. A constitutional amendment can be passed by a majority vote after being put on the ballot by a signature drive; only a two-thirds vote of the Legislature or a constitutional convention can put a revision on the ballot.

Brown has rejected the argument that Proposition 8 is a revision.

Shannon Minter, the lawyer for the National Center for Lesbian Rights, said his team’s legal position nevertheless has the same “core principles” as Brown’s.

“To be candid, we hadn’t thought of framing it in this way,” he said of Brown’s approach. “But when I read the argument, I was immediately persuaded.”

Other experts said Brown may have a more difficult task persuading the state Supreme Court justices.


“It faces an uphill battle,” said UC Berkeley Law School professor Jesse Choper.

The question of gay marriage may also have political implications for Brown. The former governor has been exploring a run to return to that job, and one of his potential opponents may be San Francisco Mayor Gavin Newsom, a hero to gay-rights advocates, who began marrying same-sex couples in 2004.

In an interview, Brown said Monday that the court has “a difficult job.”

“This is certainly a challenging case, and the court and each of those judges will reflect long and hard before they decide how they are going to vote,” he said.