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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