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The Nation's Pulse
A Good Attorney Is Hard to Find
After Proposition 8, the California marriage amendment, was approved by voters on November 4, the city and county of San Francisco along with pressure groups and celebrity lawyers attacked the measure in the California Supreme Court. Their novel theory is that the one-sentence amendment is so dramatic a change to the State's Constitution that it is a "revision" of, rather than an amendment to, the Constitution. The California Constitution requires revisions (major structural changes) to be approved by a supermajority of the legislature before going to voters while an amendment can be enacted by voter initiative.
Professor Daniel Lowenstein, an election law expert at UCLA, has pointed out: "The contention that Proposition 8 is a constitutional revision rather than an amendment borders on the frivolous." Nevertheless, the California Supreme Court decided to hear this dubious lawsuit and has ordered briefing in the case which should end in mid-January with oral argument to follow in March 2009.
As would be expected, when the suit was announced, California's attorney general said he would defend the vote of Californians. Apparently not averse to frivolous arguments, however, the attorney general reversed himself yesterday and announced: "Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification."
Thankfully, Proposition 8 will be defended by capable attorneys because the legal team representing the initiative campaign was allowed by the California Supreme Court to participate in the lawsuit. It was announced Friday that Ken Starr had joined that team.
Jerry Brown's reversal on Proposition 8 points to a recurring problem, however, for the legal defense of marriage: the opposition of legal elites (especially within the government) to marriage as the union of a husband and wife.
When the mayor of San Francisco decided in 2004 to defy state law by giving out marriage licenses to same-sex couples, the state attorney general, Bill Lockyer, was slow to react. As a legislator he had opposed a law that would have prevented recognition of same-sex marriages from other states. As attorney general, he had modified the ballot title of Proposition 22 (the marriage initiative San Francisco's mayor was ignoring) to say that it created "limits on marriage" so that it would be less palatable for voters.
So, when the California Supreme Court ordered the mayor to stop issuing marriage licenses and called for a trial to determine whether Proposition 22 was constitutional, one of its opponents, the attorney general, was the official defender of the law. The California courts even refused to allow the groups who had originally worked to get Proposition 22 approved to be official parties to the lawsuit challenging that law.
When the California Supreme Court finally heard arguments on the validity of California's marriage law, there was a new attorney general, Jerry Brown, but he also supported redefining marriage.
The California Supreme Court relied in part on the tepid defense of the marriage law by the state's attorneys in its decision to redefine marriage. This decision was the impetus for the Proposition 8 campaign. In that campaign, the attorney general again worked against marriage, changing the official ballot summary from a neutral description of the amendment to say that it would take away rights, a move that plausibly cost Proposition 8 some support.
Now the attorney general is asking the California Supreme Court to just do away with Proposition 8 altogether.
California is not an isolated instance. The Connecticut attorney general's office also disavowed strong arguments for marriage in that state's marriage lawsuit. There too, the state Supreme Court relied on that disavowal to support a judicial redefinition of marriage. Pro-family groups had earlier unsuccessfully tried to intervene in that case to counteract what they correctly perceived would be the attorney general's lack of enthusiasm for defending the law.
A case challenging Iowa's legal definition of marriage is now pending in that state's supreme court. There, the law is defended by a county attorney representing a clerk, who in accordance with state law, had declined to give a marriage license to a same-sex couple. The Iowa attorney general has not yet seen fit to offer any defense of the state's marriage law even though a trial court judge said the law was unconstitutional and more than just Polk County will be affected by a decision in the case.
Other examples could be noted.
It's widely understood that a fair trial requires competent legal representation. One wonders, therefore, whether it's possible for marriage to get a fair trial when those charged by law with defending it act as they have been doing in these cases.
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Jason| 12.22.08 @ 8:08AM
I get the impression that the enemies of conventional marriage will keep up an endless battle until they get exactly what they want. http://rightklik.blogspot.com/
Margaret Schneider| 12.22.08 @ 9:20AM
Why has no society in all the years of existence changed the definition of marriage?
Philoktetes| 12.22.08 @ 9:55AM
I wonder why Jerry Brown is taking sides with the s0d0mites. Could it be that Jerry is...no it couldn't be...could it? Maybe he has some friend who are...no, that can't be the reason.
Anthony| 12.22.08 @ 10:33AM
Good God, so governor, err, make that, attorney general moonbeam is at it again. When did the good folks of California vote this perpetual political hack in as attorney general? Why is it clowns like Brown never go away? Hey Jerry, just once in your pathetic life, get a real job, learn what it's like to meet a payroll without taxpayer money. Learn what it's like to try and run a business under the burdens fools like you impose on people. Moonbeam and the jerkenator, what a team. Way to go California. And you want the rest of the country to help bail out California with our tax dollars?? I say sell California to Mexico, we can use the pesos.
Political Observer| 12.22.08 @ 10:47AM
I can understand Jerry Brown's principled stand on this issue. However there is another principle that he also needs to understand. As the AG for the State of California, he has taken an oath to fully represent the people of California and to uphold it's laws including an amended constitution. Once he has determined that he can no l0nger honor that oath because of his personal view of the actions of the people of California than he has only one recourse and that is to resign from office. Why no one is asking for his resignation is beyond me!
Kregg| 12.22.08 @ 12:03PM
I agree with Jason, that the enemies of conventional marriage will continue until they win, thereby showing once again that even the most basic convention of a society can be turned on it's head by a determined group of zealots acting against an incredulous majority. It is time for the VAST majority of rightfully married people in California to march in the streets AND in the capitol rotunda to put our feeble-minded elected officials on notice that we will not have our twiced-voted will overturned by their malfeasance.
Real American| 12.22.08 @ 12:08PM
How detached from reality has leftist legal thought gone when a left-wing attorney general is arguing that the Constitution is unconstitutional? Jeez.
Jerry brown| 12.22.08 @ 12:15PM
My office defended state law in the first marriage case, using one of the arguments that Ken Starr is now using. That argument is that California's Domestic Partnership Law prvides substantially all the marriage rights. In a 4-3 decision, the California Supreme Court ruled otherwise, holding that same sex couples had a fundamental right under Article I (California Constitution) to marry. The court specifically held that there was no compelling interest to deny marriage to same sex couples. Given that ruling, I believe the court is bound by its own precedent to void Propostion 8 as a violation of the fundemanetal right of same sex couples to marry. I also argued that Proposition 8 was not a revision. Please read the extensive brief on the attorney general's website.
Real American| 12.22.08 @ 1:34PM
Hey, Fake Jerry Brown-
Prop 8 overruled that BS Cal Supreme Court decision. The people amended the Constitution to nullify it. You can't now argue that it takes precedent over the law that voided it and its bogus rationale.
In any event, it is the AG's job to defend the state law as it is written, not as he wants it to be written or how the Supreme Court rewrote it. Right now, marriage is one man, one woman and it is the supreme law of the land.
By failing to defend Prop 8, Jerry Brown is abdicating his responsibility and violating his duties as the AG. He needs to resign his job and he's incapable and/or unwilling do it.
Alan Brooks| 12.22.08 @ 1:49PM
Freeze gay marriage as it is now-- no more gay states. It makes sense for MASS & CT to be gay states because they are the only true lib states, but we've gone quite far enough. my family were half gay (and pedophile) so i know what the score at halftime is.
but its not too late, guys.
if someone wants more so change please leave it to the next generation or the one after. Or maybe the 22nd century.
hush this cry of progress till a hundred years have past!
Alan Brooks| 12.22.08 @ 1:56PM
(maybe it is the real jerry brown, Deepbak Chokeya's son was here last week)
Jerry we like you for wanting to colonize space but thats not for a long time, lets wait until space is colonized before we legalize gay marriage everywhere, okay? then gays can marry on Mars.
Arthur| 12.22.08 @ 3:08PM
So I guess The Constitution of California does not protect minorities from the tyranny of the majority.
Kent Lyon| 12.22.08 @ 3:45PM
Fruit flies and fruit cakes. Gov/AG moonbeam, screwing up California for almost 40 years, still at it, and California actually still votes for the guy? No wonder its facing default, bankruptcy, and mass exodus of productive citizens.
Dustoff| 12.22.08 @ 3:53PM
O-brother. I so remember what Jerry Brown and his father did to Calif.
Can you say prop 13 Jerry?
You two spenders nearly killed our state and your good buddies (dems) are at it again.
Dustoff| 12.22.08 @ 3:55PM
Arthur
tyranny
++++++++++++++++++++++++++++
Yeah right. They can still have a civil union that gives them all they want.
DrRisk| 12.22.08 @ 6:17PM
They don't call it the land of fruits and nuts for nothing.
Alan Brooks| 12.22.08 @ 6:24PM
tyranny of majority? for not wanting to clog up the courts w/ gay divorces, other gay litigation such as pertaining to employment discrimination?
tyranny is oppression, not discrimination.
Anthony| 12.22.08 @ 7:50PM
Frankly, the fake Jerry Brown makes a cogent argument that the real clown could never make. It is an interesting showdown however; the people have slapped the California Supreme Court's 4/3 decision down. Connecticut's Supreme Court, also by a 4/3 margin did the same, claiming that the Domestic Partnership Act did not provide equal rights. CT has no ballot initative. Still, we will now see if America is indeed on the verge of becoming a banana republic, ruled by a junta of judicial elites and leftists with a certain pedigreed, a la Caroline Kennedy.
DaveS| 12.22.08 @ 8:09PM
Dear AG Brown: consider yourself compelled.
DaveS| 12.22.08 @ 8:12PM
The stakes are too high for the court NOT to overturn it. The stakes: their pride would be hurt. I also predict a dissenter will resign over the fact that California (like my native Massachusetts) is no longer self-governing. Starr is a very bad choice - by association and not by skill level.
Roger| 12.23.08 @ 2:54AM
Those damn elites again. Good Christians should scour Appalachia for the most ignorant, small-minded folks they can find, propel them into office, and have the government they want (and deserve).
Timothy L. Pennell| 12.23.08 @ 9:21AM
For Christmas, I think I'ld like the ENTIRE WEST COAST to drop off in to the ocean. From Southern Caleeforneea, to the Canadian Border. Think of all the birds we could kill, with one stone.
Flex| 12.26.08 @ 12:28PM
I love Gerry Brown! His argument is deeply compelling and perfect. Page 74 of his 111 page argument is where he really guts prop 8. I'm expecting prop 8 to be destroyed. In doing so, gay marriage will become bullet proof as a result of prop 8. Prop 8 will be used as an effective shield against future anti-gay ballot measures in California, and possibly the US. Prop 8 will be treated the same as if it were a ban on Latino marriage, a ban on gay adoption, a ban on gay people in the workplace. I'm planning my gay wedding at San Francisco City Hall in June 09'!
Roy Hogue| 12.26.08 @ 11:14PM
Jerry Brown, I've watched you ruin California for far too many years already. Like your father before you, no stupid idea was too ridiculous to implement. So get out of California politics before the people throw you out.
To the Supreme Court -- remember that you must stand up before the voters every 12 years to be reconfirmed or you don't stay on the court. We've thrown out 3 justices because they refused to follow the laws of California. You can be next! You are not unaccountable to the citizens you serve. You may not create rights out of thin air where none have ever existed in the constitution or any statute. You stretch your credibility far beyond the breaking point on this one. Watch your political backs because you can be removed from office. Many people are very angry about this nonsense.