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,

    I don’t think Aaron’s an authoritarian. He probably views his idea as a compromise. 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.

  2. I almost hesitate to leap into this exchange, but here goes. In my view we will never be able to have a rational discussion about marriage in this country unless we are able to agree on what we mean when we use the term “marriage.” Most debates on the issue break down because the participants fail to recognize the distinction between marriage as a legal union and marriage as a sacramental bonding. The state has a legitimate interest in the former and no interest whatsoever in the latter.

    Broadly stated, a principal purpose of law is to define relationships and the rights and duties that flow from them. When, through the process of recording a document, the state confirms the existence of a marriage, it is simply acknowledging the creation of a legal relationship which will be recognized as such for certain statutory and common law purposes. In essence, the effect is identical to what occurs when the state issues a charter confirming that a new corporation has been validly formed or a title certificate transferring the ownership of a motor vehicle. In each instance, the action of the state merely confers legal recognition on an authorized type of relationship. It does not address the morality of the underlying transaction, nor confer the blessings of the Almighty.

    The issue confronting society in the context of gay individuals is whether government should give legal recognition to gay couples and, if so, whether that recognition should be coextensive with that afforded heterosexual couples who have entered into a legal marriage (i.e, a civil union). Proponents of legal recognition argue that there is no rational basis to treat homosexual and heterosexual partners any differently under the law. I have long agreed with this view.

    Opponents of gay marriage confuse the role of the state in regulating the legal aspects of civil unions (or marriages) and the role of religion in providing a sacramental foundation for relationships which meet the criteria of a particular religion. In other words, opponents of gay marriage argue that the legal recognition of gay relationships somehow undermines the sacramental character of marriage as they understand it. But this is quite literally nonsense. The state has nothing whatsoever to do with marriage as a religious sacrament. Therefore, the legal recognition of gay relationships has absolutely no bearing on a person’s religious view of marriage. In sum, the fear expressed by many sincerely religious people that recognition of gay marriage by the state will corrupt the theological underpinnings of marriage is simply wrong. It is, however, another example of the sort of muddled thinking we fall into when we attempt to integrate particular religious viewpoints into the law.

    My thoughts are probably not as clearly expressed as I would wish them, and I do not expect to change anyone’s mind on the controversy at issue. But unless we find a way to properly restate the issue, the debate will continue to be fruitless and needlessly abusive.

  3. Gyges:

    Most authoritarians take the position that freedom is the aberration and not the legal right of mankind. Thus to have that freedom the burden is on you to show why it is beneficial. Certainly a difference in mentality quite at odds with the underpinnings of our democracy.

  4. Aaron,

    I’m sorry, but you have it backwards. In a free society (like ours aspires to be) Governments don’t need a good reason to not prohibit a behavior, they DO need a good reason TO prohibit it. So I don’t have to prove that there’s a pressing reason for gays to marry, but you do have to prove to that there’s a pressing reason for the government forbidding them to marry.

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

    So until you can come up with a reason other than “I don’t think this word’s meaning should be made more inclusive,” you don’t get to tell me that I have to persuade you. I don’t care what you think on the matter, be wrong all you want, but you don’t get to force that belief on other people by limiting their actions.

  5. Waynebro,

    “Fact. More than half of all heterosexual marriages end in divorce. Apparently marriage is not as “dear” to the heterosexual community as you were led to believe.”

    Your red-herring falls tremendously short substantively, and logically.

    “You do realize it was issues like these that lost you guys the last two elections, right?”

    Lost “us guys?” Aren’t you being a bit presumptuous about my political standing? Please, do not suggest I’m a conservative Republican. I am not. I am objective, and the anti-Prop 8ers are wrong because they’re wrong…not because of some hidden motive of mine.

    “My parents won’t be any less married if two gays or lesbians down the street decide to get married. It won’t change anything. Its a nothing issue.”

    Yet you avoid tu quo que like the plague. Why go after a word, when it’s the law that needs adjustment? I agree that a gay “marriage” won’t affect my marriage. But who said that’s the issue? It’s another emotional red herring used to fill the abysmal void of substance.

    “If they want to get married, let em. Who cares?”

    Minorities (or majorities for that matter) do not have the right to demand people accommodate their unique vernacular out of spite and skewed purpose. As Americans, we are so cautious of political correctness that we throw reason out the window. If you want the law changed, then change the law. Don’t eye-poke w/ shifting definitions which only adulterate our language.

    “We’re supposed to be a free, equal, diverse and inclusive society. So why single them out? Who’s next? Blacks? Should blacks not be allowed to be married? How about Presbyterians? Nudists? Rotarians?”

    What an absolutely brainless thing to say. Marriage is between a man and a woman, and as long as those groups engage in a union of a man and a woman, they are marriages. Moreover, Prop-8 only sought to codify the common definition of “marriage.” The ones seeking to change definitions, per your erroneous illustration, are the anti-Prop 8ers.

    Ironically, however, you prove the point. Given a zealous right-wing conspiratorial majority, what do you think they would do with the precedence set by anti-Prop 8ers? There are some that would redefine words to explicitly exclude minority groups from certain rights and benefits; i.e. exclude gays from “families,” or adoption. That is ludicrous, but it would be the precise, subjective path that your precedence would trail blaze. Don’t be so disingenuous to pick and choose stupidity when it benefits you.

    “Instead of worrying about the mote in your neighbors eye you might want to start focusing on that beam in your own.”

    What the hell does that mean? I haven’t heard a single passing of judgment on this thread. The anti-Prop 8 argument falls apart at the seems of logic, reason, justice, and efficiency…we needn’t employ moral judgments. Go away. Or, at least back to law school.

  6. You do realize it was issues like these that lost you guys the last two elections, right?

    People don’t care. I don’t care. No one cares.

    My parents won’t be any less married if two gays or lesbians down the street decide to get married. It won’t change anything. Its a nothing issue. We have important issues to deal with right now. Real issues. Issues of great weight and severity. Who cares about gay marriage? I’m not “for” it but nor am I against it. Its a nothing issue. If they want to get married, let em. Who cares? We’re supposed to be a free, equal, diverse and inclusive society. So why single them out? Who’s next? Blacks? Should blacks not be allowed to be married? How about Presbyterians? Nudists? Rotarians?

    Instead of worrying about the mote in your neighbors eye you might want to start focusing on that beam in your own.

  7. Pat 1, January 1, 2009 at 5:11 pm

    “Why demand the word that is dear to the heterosexual traditional family.”

    Fact.

    More than half of all heterosexual marriages end in divorce.

    Apparently marriage is not as “dear” to the heterosexual community as you were led to believe.

  8. Lesbians and gays made the distinction between their orientation and the orientation of man-woman unions.

    The distinction the homosexual community made from the heterosexual
    community was apparently made with pride.
    Domestic partnerships have become accepted and given the rights that equal the marriage rights of “one man and one woman”.

    Why would heterosexual couples want to give up the title “marriage” when they entered into “marriage” with the understanding of the special man – woman union?
    Why do homosexuals want to take from heterosexuals the “marriage” their lifetime tradition allowed them to have?

    This is selfish and demanding and discriminatory. And unnecessary.

    Domestic partnership allows everything that marriage does without the word. Why demand the word that is dear to the heterosexual traditional family.

  9. Puzzling,

    The problem is that marriage is not solely a religious issue. You are begging the question and conflating motive with reality.

    Gyges,

    Your smirk understanding of pluralities and definitions fails you completely, once again, in addressing the substance of my post. The union of “a man and a woman,” by definition does not limit the aggregate. A single man or woman could be “married” 100 times to another individual, and so long as that union is between 2 people, is marriage, and the aggregate is irrelevant. I’m surprised you missed this rather blatant and practical point.

    “The reason I didn’t address the “substance” of your post was because you post lacked any real substance. Your view point seems to be that because a word currently has one particular meaning that it should not be altered, and that the law has some responsibility to keep the language “pure.” I didn’t find that worth commenting on.”

    Yeah…right. Given your limited track record, save the time picking up your ego and get to the post. The fact of the matter is citizens have a right to codify they’re language if they’d like to. Moreover, where differing definitions have substantive implications, I think it’s rather important to do so.

    “I will say this: Marriage has become about more than the legalities, it has become an avenue for two people to publicly declare their love for each other, and society recognizing that love.”

    You think this is new? Since when did it “become” a facility of love? What an odd post.

    “To continue refuse gays that basic happiness because that’s the way it’s always been is just cruel.”

    No, it’s not. It’s self-victimization. Marriage isn’t between same gendered people, no matter how much it “means” to them. It may mean the world to me to have people consider me a woman, but I’m not. I never will be. And to boo-hoo reality is only lends to self-victimization.

    Neil M,

    “Ah…so the tradition of marriage has been unchanged except for all of those times that it changed? I guess no one can disagree with that.”

    What are you talking about? The definition of marriage and how it is legitimized in the eyes of the state are two distinct concepts that cannot be so easily conflated into one notion of “tradition,” as you’ve so disingenuously done. More importantly, however, this discussion is one of definition. GLBT want to change the common (not to say only) definition of marriage. The majority of CA have rejected the move, and defined the word. This says nothing of instances throughout history where “marriage” has differed in form or substance. But what we consider today as “marriage” is generally the Judeo-Christian tradition. That doesn’t necessitate definitional compliance, but that’s the way it is. It’s really not that big of a deal. If the GLBT, again, would try and fix the laws rather than eye-poke, I think they’d reach the equality they deserve much quicker.

  10. Aaron –

    “Both polygyny and polyandry are still unions between “a man and a woman.” There is no limitation in the aggregate, and I daresay that “symbolic” marriages are completely moot. Polygamy is very much “marriage,” although deligitimized in America. Same thing w/ the marriages of minors (little children).”

    Ah…so the tradition of marriage has been unchanged except for all of those times that it changed? I guess no one can disagree with that.

    If you really want to learn something about marriage, I strongly recommend you read “Marriage, A History: From Obedience to Intimacy, or How Love Conquered Marriage” by author and historian Stephanie Coontz. You’ll be surprised just how much the “unchanging tradition” of marriage has changed throughout human history, both in form and in function.

  11. Aaron,

    I’m sorry, I wasn’t aware that the words ‘a’, ‘man,’and ‘woman’ had any usages that weren’t singular. Neither did the dictionaries I consulted. So you’ll forgive me if I (and the rest of the English speaking world) make the assumption that the phrase “A man and A woman” refers to two individuals.

    The reason I didn’t address the “substance” of your post was because you post lacked any real substance. Your view point seems to be that because a word currently has one particular meaning that it should not be altered, and that the law has some responsibility to keep the language “pure.” I didn’t find that worth commenting on.

    I will say this: Marriage has become about more than the legalities, it has become an avenue for two people to publicly declare their love for each other, and society recognizing that love. These people not only have a right all the legal perks, but they deserve to be able to tell people that they’re married. Not that “we have a state recognized civil union” but, “We’re married.” When we(and I imagine most people) were first married, my wife and I kept saying “We’re married now,” and we weren’t thinking about our insurance, or any of the other legalities. It’s the emotional impact of the word itself that makes that phrase seem to have talismanic powers for newlyweds. To continue refuse gays that basic happiness because that’s the way it’s always been is just cruel.

  12. Gyges,

    Both polygyny and polyandry are still unions between “a man and a woman.” There is no limitation in the aggregate, and I daresay that “symbolic” marriages are completely moot. Polygamy is very much “marriage,” although deligitimized in America. Same thing w/ the marriages of minors (little children).

    More importantly, you’ve evaded the substance of my post.

  13. Aaron,

    Marriage has always been between a man and a woman. Except when it was between a man and multiple women, and those rare cases where it was a woman and multiple men. Oh and let’s not forget those cultures that symbolically marry people to various deities.

  14. The action to invalidate marriages may not be a blunder. Kenneth Starr is too smart for that. It could be viewed as a shrewd tactical move. If the marriages are invalidated, the fight would have to continue as an appeal to the Federal Court – exactly where the prop 8 opponents do not want to be and where Kenneth Starr is very comfortable.

    Brown is likely making a blunder. He may be giving cause for his argument not to advance since the state will be unrepresented in a direct challenge to a state constitutional amendment. The court may not feel comfortable with that, particularly because of Brown’s flip-flop. Most likely, Starr will point this out. Brown’s actions has opened the door for legal uncertainty. It might be better to just defend non-aggressively.

  15. FormerFederalLEO,

    I need to point out one slight inaccuracy in your post. The traditional reservation of “1 man and 1 woman” is not the definition being codified in Prop 8, nor is it traditional. It’s a rather moot for the present discussion, but the implication of “definition” is rather important.

    I do not understand why it is necessary that “marriage” be all inclusive. Except for a very recent shift in the vernacular, “marriage” has always been “between a man and a woman.” If the benefits and rights enjoyed by marriages are not presently given to homosexual unions, then I say we give it to them. Clearly, marriage is a fundamental right; but there is nothing that suggests that gay-unions are not equally considered a fundamental right. Therefore, to argue that marriage is all inclusive is not only unnecessary, but disingenuous to our language.

    Prop 8, in effect, codified the meaning of a disputed word. It does not limit the power of the state to recognize other similar unions, nor does it limit the state from recognizing all civil unions equally, including marriage. If we want equality, then substitute references to “marriage” in statute for “all state sanctioned unions.” Why not go after the statute for being exclusive, rather than redefine “marriage?” The only reason I can come to is pettiness. I am a strict proponent of equality, but not “equality on my terms.” Even less when the motivation is eye-poking.

  16. I forgot my prelude to the previous post:

    I will most likely always ‘personally’ prefer to reserve the term of *marriage* between only 1 man and 1 woman, as I have previously expressed in my minority opinion within this forum. However, I think Mr. Brown is not only morally correct but also constitutional accurate in his attempt to overturn Proposition 8. How can we continue to deny other citizens equal rights under the law as long as they obey those laws?

  17. Even a conservative dinosaur such as I can admit that this 1man/1woman marriage tradition might be very right in my conservative viewpoint of life, but that it is equally very wrong in oh so many ways. These citizens pay taxes, vote, and reflect all walks-of-life.

    There is a phrase from an older country song: “Sometimes right is just as wrong as wrong is!”

    I just saw this old French proverb and I thought that it was somewhat apropos for this thread:

    “Love makes passion, but money makes marriage”

    Oh, and I never thought I would *ever* agree with Mr. Jerry Brown on anything (except that Linda Ronstadt was hot and how in the world did he ever manage that)!

  18. It’s been said many times before and probably on this board, but there is little doubt that 20-40 years from now when everyone actually has the benefits of equal rights envisioned by our Founders, people will look back at Prop 8 and other anti-gay discriminatory laws and practices and they’ll ask: “What could they have been thinking?”

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