California Attorney General Jerry Brown issued a brief Dec. 19 that asserted that Prop. 8, the ballot initiative that California voters passed Nov. 4 that bans same-sex marriage in the state, is unconstitutional because it limits the fundamental rights of a minority group.
Brown had previously said that his position as attorney general required him to defend the will of the California voters, but last week he shifted his position on Prop. 8 after further reviewing the initiative.
Brown filed his brief in response to three lawsuits currently before the California Supreme Court that allege that the ballot initiative was passed unconstitutionally. Those suits assert that Prop. 8 should have been considered a constitutional revision — a fundamental change to the constitution that requires the support of two-thirds of the state legislature before being placed on the ballot — rather than an amendment, which allows the issue to be posed directly to voters without legislative approval.
In his 111-page brief, however, Brown said there is no precedent to support the court overturning the initiative because of the revision argument. He argued, instead, that the court should take such action because it has previously found that marriage is a right that should be provided to all Americans, no matter their sexual orientation.
“It became evident that the Article 1 provision guaranteeing basic liberty, which includes the right to marry, took precedence over the initiative,” Brown told the Associated Press. “Based on my duty to defend the law and the entire Constitution, I concluded the court should protect the right to marry even in the face of the 52-percent vote.”
In May, the California Supreme Court overturned a previous ballot initiative that banned same-sex marriage, finding that marriage was a fundamental right. Brown noted that in order for the court’s decision to be overturned, there must be “compelling justification,” which Brown said does not exist.
Shannon Minter, legal director of the National Center for Lesbian Rights, said Brown’s decision could bode well for the future of the court case.
“The fact that after looking at this he shifted his position and is really bucking convention by not defending Prop. 8 signals very clearly that this proposition cannot be defended,” Minter said.
In his brief, Brown also urged the court to uphold the validity of the marriages of the 18,000 same-sex couples who wed in California during the time that such unions were legal.
The same day Brown filed his brief, however, proponents of Prop. 8 also filed a brief urging the court to nullify these marriages.
Attorneys for ProtectMarriage-Yes on 8 and the Proposition 8 Legal Defense Fund — which is now being led by Kenneth Starr, former U.S. solicitor general who spearheaded the impeachment of former President Bill Clinton — issued briefs that urge the state Supreme Court to retroactively invalidate the marriages.
The legal filings also argue against the petitioners’ claims that Prop. 8 should have been considered a revision.
The California Supreme Court is expected to rule on the cases in March.
Jen Colletta can be reached at firstname.lastname@example.org.