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.
