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A Good Attorney Is Hard to Find

California's Jerry Brown is not the only state attorney general unwilling to defend his state's marriage laws.

By 12.22.08

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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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About the Author

William C. Duncan is the director of the Marriage Law Foundation.