California Attorney General encourages review of gay marriage ban


By Josh Richman

The Oakland (Calif.) Tribune



OAKLAND, Calif. — California Attorney General Jerry Brown urged the California Supreme Court on Monday to review whether Proposition 8’s ban on same-sex marriage should stand, but he opposed delaying the ban’s effect while the court considers the case.

Brown filed briefs Monday in response to three petitions pending before the state’s highest court. It wasn’t time for him to weigh in on those petitions’ statement that Prop. 8 is a constitutional revision rather than a constitutional amendment and so can’t be allowed to pass with only a majority referendum vote; he merely had to say whether he thought the court should take the case.

"The petitions raise issues of statewide importance, implicating not only California’s marriage laws but also the initiative process and the Constitution itself," he wrote. "It is appropriate for this Court to address these issues to provide certainty and finality in this matter."

"But, due to the potential uncertainty that may be caused in important legal relationships by a temporary stay, the public interest would be better served by allowing Proposition 8 to remain in effect while expediting briefing and decision on these writ petitions," that brief concluded.

Proposition 8, which changed the state constitution to prohibit same-sex marriage, was approved Nov. 4 by 52.2 percent of voters. Its foes now want the Supreme Court to set it aside by finding it’s a revision to the constitution — a substantial change to the constitution as a whole, which requires two-thirds votes of both Legislative chambers in order to appear on the ballot — as opposed to an amendment, which can be placed on the ballot by petition.

Prop. 8’s supporters want the Supreme Court to take the case, as well.

"The people of California are entitled to a prompt resolution of whether Proposition 8 properly amended their Constitution," the proponents wrote in their court papers, also filed Monday. "Proposition 8 was the subject of a vigorous and expensive campaign that generated an intense debate and very strong feelings on both sides. The people have a right to know as quickly as possible the status and definition of marriage under the California Constitution."

One conservative group, however, wants the Supreme Court to reject the case.


"This Court’s prior decisions articulating the difference between a revision and an amendment demonstrate that Petitioners’ arguments are flawed," the public-interest law firm Liberty Counsel wrote on behalf of the Campaign for Children and Families, in a brief also filed Monday. The proponents argued they should be allowed to intervene in the case because Brown and Gov. Arnold Schwarzenegger — both of whom have spoken publicly against Prop. 8 — can’t be trusted to vigorously defend it.


Brown, who is exploring a 2010 gubernatorial bid, is walking into "a minefield," said professor Timothy Hodson, executive director of the Center for California Studies at Sacramento State.

"Jerry Brown is in a dilemma," Hodson said. "He is constitutionally bound and ethically required as attorney general to defend the state of California, and in this case, that means defending what a majority of Californians decided in the passage of Proposition 8.

"Doing so will offend some of the die-hard ’No on Prop. 8’ forces who look at any acceptance of the election results as unacceptable. Many others in the No on 8 campaign will understand that he has a legal obligation, an ethical obligation to do this."

But Brown also will have a tough time if he tries to recuse himself, Hodson said. Legal ethics require attorneys to argue on their clients’ behalf even when that clashes with their own convictions and stepping back from this would give political rivals a chance to paint Brown as "a guy who’s going to pick and choose what laws he’s going to enforce."

"What he needs to hope is that a majority of Californians, regardless of their position on Proposition 8, are going to understand we are a nation of laws and officeholders sometimes have to do things they don’t necessarily personally agree with," Hodson said.



The Supreme Court earlier this year ruled that state statutes forbidding same-sex marriage were unconstitutional "not only under the state constitutional right to marry, but also under the state constitutional equal protection clause." That case and ruling inspired same-sex marriage foes to pursue Prop. 8, which by changing the state’s constitution sought to render the court’s ruling moot.

Brown’s brief noted that although he opposes a stay, he’s not questioning the validity of same-sex marriages that occurred after the Supreme Court’s ruling was finalized in June but before this month’s passage of Prop. 8.

As many as 18,000 same-sex couples might’ve married during that period.


(c) 2008, The Oakland Tribune (Oakland, Calif.).

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Distributed by McClatchy-Tribune Information Services.

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