Brown Seeks to Overturn Proposition 8 as L

225px-mayor_of_oakland_jerry_brownIn a surprising reversal, California Attorney General Jerry Brown asked the California Supreme Court on Friday to overturn Proposition 8 on the grounds that it violates basic rights guaranteed in the state Constitution. Brown had said that he would be duty bound to support the initiative in the courts. Traditional marriage advocates are now moving to retroactively invalidate the marriages of same-sex couples married before Proposition 8 passed in a the new round of litigation.

Brown now argues that “Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification.” Brown is arguing that the ability of the majority to block such marriages is an abuse of majoritarian power. He insists that fundamental rights in the state constitution “become a dead letter if they can just be amended” by popular vote. That argument is what the framers viewed as majoritarian terror or tyranny.

The Yes on 8 camp is being represented by Kenneth Starr, the former Whitewater special prosecutor and now dean of Pepperdine University law school.

Brown previously defended the state’s ban on same-sex marriage. The court ruled 4-3 on May 15 that California’s ban on same-sex marriage violated the constitutional rights of gays and lesbians. Proposition 8 then amended the state Constitution to overturn the ruling and declare that only marriage between a man and a woman is “valid or recognized in California.”

Brown’s position creates an interesting issue of legal ethics and obligations. It is the duty of the Attorney General to defend duly enacted laws. Otherwise, you have a curious situation where a state’s laws are not defended by the state. In this case, the state is actually arguing against its own law. Brown’s position between the earlier and current litigation seems hopelessly conflicted. It would have been more consistent if he refused to defend either the earlier law or current law. Yet, there is the problem of lawyers defending a law that they consider to be unconstitutional. Brown can argue that, once the Court recognize the constitutional right of same-sex couples in the Constitution, it became a problem to have it set aside by popular vote. The earlier law was the result of legislative consensus while this is the product of popular vote. Yet, there status as “law” is the same for the purposes of the Attorney General’s office.

I strongly opposed Proposition 8. Yet, Brown’s reversal does raise some troubling question of who will defend the law for the state.

The move to invalidate marriages is even more troubling. The idea that the majority can invalidate marriages is a form of majoritarian tyranny. Couples are allowed to rely on the existing law — whether created by the legislature or the courts. These advocates may be committing a serious blunder. Just as gay rights advocates were criticized for pushing too hard and too fast on the marriage issue (triggering a backlash), these advocates have selected the worst possible issue to take to the courts. Even conservative judges will likely be bothered by this retroactive move. It is also a move that could result in a federal constitutional loss — taking the issue out of the state constitutional confines.

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33 thoughts on “Brown Seeks to Overturn Proposition 8 as L”

  1. Mespo,

    Nice false analogy. My proposal exhibits no differentiation, and no segregation. Odd you STILL haven’t increased your reading comprehension sufficiently to see that rather obvious fact.


    Did Prop 8 take something that was legal and make it illegal? Sure. That’s not in debate. The issue is rather the status quo regarding marriage and gays was problematic. Considering the equity and rights is a legal issue, Prop 8 is completely moot as to whether gays get those rights and equities. It simply states that CA closed an illegitimate door (which happens to be the most problematic) for those rights. An end does not justify any means, particularly when more equitable means are available. I am surprised that so many people advocate such a legal vigilantism.

    P.S. The strawman was that marriage “has always” been defined as a union between a man and a woman. I do not believe that, but believe it true in the gross majority of cases. As such, “marriage” is a term that has traditionally (and currently) meant simply that, and to change a definition rather than seek equitable remedy is simply disingenuous.


    “You heard (figuratively) and understood him correctly. That is what he said, and probably what he meant until you pointed out the sheer lunacy of it.”

    One more dumb comment like this, and I’ll completely ignore you. And may I highlight the absolutely sad nature of a society w/ people like you, incapable of dialoguing in an intelligent, respectful manner. No wonder the anti-Prop 8ers lost the battle. They would cease the emotional nonsense and offense long enough to have a constructive discussion.


    Nailed it? Nailed what? Gyges has yet to explain why a charge of inequity is better fought via the dictionary, rather than the law. Moreover, Gyges has failed to show what equity is remedied by changing the definition of a word that has remained (for the most part) consistent over thousands of years, when a simple change in the law is available and rather simple. If you think Gyges nailed it, then I think you’ve drunk a little too deeply from the emotional, nonsensical rhetoric of the anti-Prop 8ers w/ out objectively evaluating both the equity, justice, and functioning of the courts and system.

    “Justice for all” does not give rise to “justice the way I want it.” I challenge ALL to show me how statutory modification, equating gay unions w/ marriage (or even replacing “marriage” w/ “all civil unions”) does any further damage to a vulnerable minority. What grounds do the anti-Prop 8ers have to object? Oh yes…because they want to eye-poke. Time for them to grow-up.

  2. Gyges 1, January 5, 2009 at 10:51 am


    That was a poorly worded jab your responses in the 9/11 thread. I apologize, it was completely unnecessary and clearly against the wishes of our host that we remain civil. I’ll endeavor to keep my editorial critiques of your writing style to myself in the future.”

    Yea I know.

    I was just helping you come to that realization.

  3. Gyges,

    I’m glad you said what you said to Wayne. I have to say it was distressing to me and I admire you for owing up to it and apologizing. I’m also impressed with your argument with aaron. I think you nailed it.

  4. Gyges:

    You heard (figuratively) and understood him correctly. That is what he said, and probably what he meant until you pointed out the sheer lunacy of it.

  5. Aaron,

    You’re for something that changed the law to prohibit something that had people were able to do. Period. No matter how many times you cry “straw man” or refer to what “has always been” that doesn’t change that Prop. 8 took something that was legal and made it illegal. When asked to justify this removal of freedom you replied, “The ‘pressing’ reason in linguistic integrity.” If I misunderstood you by it was by taking your words at face value. Next time I’ll assume that you only mean something until someone points out how ridiculous it really is.

    Either way, you’re set in your views, I’m obviously set in mine. I’m willing to agree to disagree if you are. I’ll even let you get the last word if you want. I hate taking part in pointless debates, which is what this is quickly becoming.


    That was a poorly worded jab your responses in the 9/11 thread. I apologize, it was completely unnecessary and clearly against the wishes of our host that we remain civil. I’ll endeavor to keep my editorial critiques of your writing style to myself in the future.

  6. Aaron:

    “My premise is that are more equitable and efficient means of upholding justice than anti-Prop 8 (i.e. through “gay marriage”).”


    That’s the exact position Gov. George Wallace had when he barricaded the door of Foster Auditorium at the University of Alabama trying to stop Vivian Malone and James Wood from attending. He famously said later, “A racist is one who despises someone because of his color, and an Alabama segregationist is one who conscientiously believes that it is in the best interest of Negro and white to have a separate education and social order.” Funny how the oppressed are always being benefited by the oppressors and don’t even know it’s for their own good. You are in good –and expected — company.

  7. Gyges,

    Apparently you have misunderstood me. You can’t take the government interest of linguistic integrity in isolation. Balance that with alternatives which are unarguable equitable.

    Moreover, you continue to beg the question of changing definitions. The CASC certainly gave gays the right to marry. What this did more than anything, is highlight the difference in what people consider “marriage.” I do not doubt that the definition could change, but it has not…as evidenced by CA voters having now codifed a standard definition.

    The irritating part of this whole thing is that the only reason anti-Prop 8ers have gone about the path they have, is simply to eye-poke. Given the easy equitable route, and the difficult, political stamping eye poke, they’ve chosen the latter. I have very little patience w/ such juvenile antics.

    And in the future, before posing yourself as an academic, learn a thing or two about a strawman and then upgrade your academic integrity.


    Go away, then grow-up. My premise is that are more equitable and efficient means of upholding justice than anti-Prop 8 (i.e. through “gay marriage”). To completely blind yourself to this fact and pick-up Gyges’ erroneous strawman to attack rhetoric rather than substance only speaks to your inability to dialogue. Of course, your ad hominem is glaring enough. You are irrelevant.


    Get used to it. Strawman seem to be par for the course with these guys.

  8. Gyges 1, January 4, 2009 at 5:15 pm


    Feel free to take offense, but you have to admit “verbose” is pretty accurate.”

    Offense? Why are you planning on offending me?

    I haven’t a clue what you’re talking about. The last comment I made in this thread was 3 days ago.

    What is your problem with me now?

  9. Mespo,

    “Sanctimonious babble” was too good not to use. Also I feel I should commend you for your own patience. I’ve been tempted to wade back into that other fray, but don’t have time to read all those verbose replies.


    Feel free to take offense, but you have to admit “verbose” is pretty accurate.

  10. Thank you Gyges from all of us too worn out by the mindless rhetoric of Aaron to type the response you made. There are just too many of the “it’s true because I say it’s true” type thinkers to reply to all of them. How do they function?

    As to your comment that “I don’t think Aaron’s an authoritarian. He probably views his idea as a compromise,” I suggest it is always the way of the autocrat to suggest that you should compromise with your freedom. Sort of the old line about what’s mine is mine and what’s yours is negotiable.

  11. Aaron,

    I generally wouldn’t bother responding at this point, since you seem to be truly committed to the absurd idea that there exists some duty of governments to maintain an strangle hold on language. You’ve provided no reason for this idea other than to insist that it’s true. So, since I don’t feel like mocking it (which is the only response it warrants) anymore than I already have I’m not going to address it further.

    I’m just going to point out one fact that so far you’ve been willfully ignoring. Before Prop. 8 passed gay couples were able to be legally married in California, Massachusetts, Canada, the Netherlands, Belgium, Norway, South Africa, and Spain. The definition had been already been changed to include gay couples. Despite of your sanctimonious babble about preserving the language the language had in fact already changed. So no, you can no longer claim that “Marriage always was between a man and a woman.”

    Rather than asking for something new, those who oppose Prop. 8 are simply saying “Don’t take away what we already have.”

  12. Gyges,

    The ‘pressing’ reason in linguistic integrity. Take that and turn it on its head, then what’s the law worth? But more importantly is the fact that you are flat wrong. I DON’T have the right to be called a woman, and receive government subsidies for women and minorities. I DON’T have the right to call my dogs “dependants” on my tax return because they mean more to me than your children do to you. There’s an element of common sense—don’t hijack the language to meet your cause. Attack the inequitable law. Anything else is asinine.

    “You want us to tell a whole section of the population “well, you’ve got equal rights as us… as long as you call it something different, because we like this word the way it is.”

    Something different? No—call it what it is!! And if you have an issue with separate but equal (although that’s precisely what it is), then amend the law to include ALL civil unions, rather than simply state “marriage.” Why in the world does the gay community have the right to change our words for their own self-victimized purposes when changing the law is easier and more equitable…and all without adulterating the language.

    “I’m sorry, but the meaning of words change over time, just look at the history of who was considered a citizen.”

    They do, but CA has made it clear that there, marriage has not. The only way you can implicate this reasoning is to suggest YOUR definition is ok, rather than the majorities. You have yet to show a reason why that is so.

    Again, a constant understanding of our language is imperative to our law. Look at all the examples within FRE. Hearsay, statements, etc. There are codified definitions, and to change them at the will of a whining minority with no good reasons of their own only opens a pandora’s box. It’s stupid, AND bad policy.


    If you think I’m an authoritarian, then you are a fool. I daresay as much can be expected by such flimsy ad hominem stitched together while begging the question. Your inability to address the thread substantively, but rather descend into emotional name calling and rhetoric only speaks to your incompetence in engaging in a fruitful discussion. Go away. Like, to Canada.


    I tend to agree with the substantive equality you promulgate. However, you fail in believing that opponents confuse the secular and religious. While that may be true, even in the majority of the cases, such an observation is incomplete. The reason is simple: if equality can be gained via a change of law, approaching the subject of definitions is wholly premature, and unnecessary. There’s a right to equality, but not equality the way we want it. The only reason gays have pushed the issue, is to eye-poke conservatives. There rights are attainable through other means, but they want to eye-poke. That is inexcusable.


    “The problem is that there is no reason that gays should have to compromise. They’re not asking for anything except to be treated the same way as everyone else.”

    No they’re not. They asking for the unprecedented special treatment of changing words to include themselves that have not, and do not include them—by definition. Rather than seek equity, they seek to mark a political stamp. That is not their right.

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