One of the stunning developments over the weekend in the upcoming California Supreme Court hearing on Prop. 8 was Attorney General Jerry Brown’s reversal of opinion on Prop. 8, which the state now says should go. While Brown’s always privately been a supporter of same-sex marriage, he had to find a legal argument for it. Unconvinced that the “revision” argument promulgated by Lambda Legal was sufficient, Brown came up with one on his own.
The Los Angeles Times explains the gist of Brown’s filing to the court:
“The California Constitution protects certain rights as “inalienable,” Brown wrote. Those include a right to liberty and to privacy, which the courts have said includes a person’s right to marry. The issue before the court “presents a conflict between the constitutional power of the voters to amend the Constitution, on the one hand, and the Constitution’s Declaration of Rights, on the other,” Brown wrote. The issue “is whether rights secured under the state Constitution’s safeguard of liberty as an ‘inalienable’ right may intentionally be withdrawn from a class of persons by an initiative amendment.” Voters are allowed to amend other parts of the Constitution by majority vote, but to use the ballot box to take away an “inalienable” right would establish a “tyranny of the majority,” which the Constitution was designed, in part, to prevent, he wrote.”
And while the new legal argument opens a new avenue of deliberation for the Supreme Court to consider, the chances it will persuade the justices is considered by legal scholars to be just as slim as Lambda Legal’s:
“Legal analysts had previously thought the majority of the court was leaning toward upholding Proposition 8. The argument that the proposition was an improper revision of the Constitution appeared to face a difficult path. By introducing a new argument, Brown might find an opening for justices to maintain the right to same-sex marriage, they said.
Nonetheless, the attorney general’s brief surprised some legal scholars.
Santa Clara University law professor Gerald Uelmen, an expert on the state high court, said Brown’s argument “turns constitutional law on its head.” Uelmen said he was unaware of any case law that supported Brown’s theory.
He added that he expected the state Supreme Court to reject the argument. “I think it is much too radical for this court,” he said.”
Joe Moag
I would be interested to know why Prof. Uelmen feels that Brown’s argument “turns constitutional law on its head.” Brown’s argument seems, to this layperson, narrowly tailored to address vorting and rights in terms of “inalienable” rights, versus other, less-than inalienable rights.
How’s that turning the constitution on its head?
MadProfessah
I agree with Joe Moag. I applaud Attorney General Brown for making the argument that basically all minorities would make: “The majority shouldn’t be able to vote to eliminate a fundamental right enjoyed by a minority. Period.”
It’s pretty odd that California’s constitution wouldn’t defend this principle and I think it will make it much harder for the Cal Supremes to come up with a decision that rejects this idea.
I’d love to hear more specifics from Prof. Uelmen about exactly what part of constitutional law he believes that this principle violates.
It also gives us a road map for what kind of ballot measure we should move forward in 2010, a constitutional amendment which says that fundamental rights declared by the court can not be removed by majority vote, but must reach a 60% (or 2/3rds) threshold instead. This would both repeal Prop 8 and protect the rights of minorities in the future.
Thom
Apartheid: A system of laws applied to one category of citizens in order to isolate them and keep them from having privileges and opportunities given to all others.
Stop gay apartheid.
The Gay Numbers
I would love to support Brown’s argument, but there is not much case law in reading the brief for his position.
I should point I out that I do agree that the brief is compelling regarding the issue of two conflicting sections of the California Constitution. This is powerful stuff, and regardless, I believe will give the Court even more fodder to overturn Prop 8.
Where, I have a problem is his solution. It does not have any case law to support it. He uses In Re Marriage. But, In Re Marriage did not specifically address this issue. He also does not explain a mechanism for amendment that is not checked by the Courts. He mentions strict scrutiny for how to address the harmonizing between the two conflicting sections, but then he does not explain what happens if the public disagrees. The public has no recourse.
Historically speaking, equal protection analysis and even fundamental rights have been subject to amendment if there is enough to obtain the more strigent requirements of writing amendments such as by super majority or 3/4s vote, etc processes.
He offers the Court no such out here because he leaves the Court without the revision option. Thus, I would like to say this brief is very good, but its only okay. It does not anticipate some obvious questions. This concerns me as to its impact on the outcomes of this case. I can only hope the court excepts his premise over conflicting Constitutional principles and strict scrutiny without worrying over the issues that i discuss here.
JPinWeHo
If you read the AG brief, he spends the majority of the brief discussing why each of the LambdaLegal arguments fail – and in, fact, gives convincing reasons why Prop 8 is an amendment and not a revision (and is therefore constitutional). One such reason is that if Prop 8 were overturned as a revision, many other Propositions that have long been passed (and that are beneficial to CA public) could be overturned as well. Those discussions in the AG brief are harmful to the NoOnProp8 cause. His additional argument is pretty threadbare – with little legal support – I don’t think the Court will buy it. In the end, I think this is not looking good for us.
Bob
If Prop 8 is allowed to stand, I hope we see a barrage of ballot initiatives aimed at other groups that attempt to strip them of some sort of right. And I hope it ends up clogging our courts for decades to come. It’s a stupid, stupid, stupid idea to let one group’s rights be put to a vote. And if the court allows it, it will open a huge can of worms that threatens every minority group in this state.
Pragmatist
@The Gay Numbers: I strongly agree with that assessment. I think Brown’s argument has great intuitive appeal, but is ultimately just a naked policy argument.
I remain convinced that the revision/amendment argument is a robust one. It has intuitive appeal; it has a solid basis in existing case law; and it draws a lot of strength from In Re Marriage. Still, I’m doubtful that the Court will have the balls to do the (legally and morally) right thing.
Camilo
It makes a lot of sense to me. I hope it works!
The Gay Numbers
@JPinWeHo: I found the rest of his brief thin case law to contradictory on arguments for the amendment versus revision processes when placed into context with his reasoning regarding invalidation of Prop 8.
Essentially, he goes through all of this analysis that is basically irrelevant because, in the end, when he discusses the two conflicting sections of the Constitution, he admits this is a question of first impression. There is no case law on point. The case law prior addresses situations in which the Court was not being asked to address conflicts in sections of the Constitution- one which is anti majoritarian versus one which is majoritarian. That’s the question in a nutshell.
There is no case law directly on point regarding this issue. If there is, I didn’t see it in his brief. None of the case law discusses address the central problem- to rule in favor of Yes on 8 is to argue that there is no equal protection analysis.
He as much as conceeds the point under his rational for overturning Prop 8- namely that to allow it to stand is to render one section of the California Constitution meaningless. If you conceed this point as he does, then the earlier part of his brief, with its thin on point case law, is rendered a contradiction.
The one argument you cite is irrelevant to the Constitutional point. In fact, it’s a bizare one. Why would other propostions be overturned unless they do not meet Constitutional muster for the reasons he site. Let me put this another way, if those same provisions were tested under strict scrutinty as he suggests, they would almost always fail. He changes the mechanism by which they fail, but they would almost always fail.
I just think this was not a well reasoned brief. I ended up with a lot of questions. I don’t think this bodes poorly or well for us. I think the only part that matters is that he conceeds a big point that is the core of the case- the fact that there is a balancing that must happen here greater than 50 plus 1 because there are two sections of the Constitution in conflict.
Where he disagrees is on processes. He says strict scrutiny. No on 8 says revision. To me, ultimately I don’t see how the justices avoid this issue without the effect being greater than gay marriage. As I said above, that’s the part that really makes his whole brief self contradictory- he claims that there is no issue greater than marriage if 8 is upheld, but then conceeds there are contradictions in the Constitution if it is upheld. Which is it? That’s what the court must decide first. Thus I am no more or less certain what they will decide based on this brief.
leschuck
If a long-oppressed minority’s fundamental rights can be voted out by a tyrannical majority–if there is no argument sufficient to convince the court to overturn Proposition 8–then California has no “constitution” at all.
The Gay Numbers
@Pragmatist: Yeah, I think the only real issues here are political. In terms of framiing the legal issue, even Brown’s brief gets it right at the end. Although he goes through great pretzel logic by arguing that a limit on equal protection and fundamental rights anlysis will not have greater repercussion on the rest of the governmental structure in CA and on separations of power, he then contradicts himself by writing at the end he would overturn Prop 8 because it creates a conflict between two sections of the Constitution. As I said above- which is it? Either it creates a conflict or it does not. if it does, then the resolution will be broader than just marriage. It’s hard to see how one can argue it won’t when he argues that affirming Prop 8 would render a section of the California Constitution meaningless. Thus, when I look at the Ca S.Ct. and its reasoning in In Re Marrige, I am left with the same question: Either equal protection and fundamental rights analysis will be turned on its head or it will not. To uphold 8 will require some pretzel logic that says one can use equal protection analysis, but that can be overturn with bare majority – the very thing that equal protection analysis and fundamental rights are meant to protect against. The only reason why they would engage in such logic is politics to me. Not case law. The case law here is one of first impression. They have never dealt directly with this issue, and would have wide ranging impact. I don’t know how one gets around that. Even with Brown’s pretzel logic , he failed to do so.
petted
@The Gay Numbers: I didn’t think he was using in Re: Marriage Cases in that way – he used that case to establish how marriage was established as an inalienable right. There certainly isn’t any case law to support it, as he said in the brief this was a unique situation in which to addresses this question (sorry just spotted your second post so – shrug). Anyway his posed test of constitutionality also had a rider which would allow voter initiatives in this set of circumstances to be found valid – in short that there had to be a reasonable reason for passing the amendment relating to public health and welfare which proposition 8 does not however other amendments restricting rights of a suspect group, say criminals, restricting their rights of movement and travel would be constitutional because there are valid reasons in terms of health and safety for not wanting a felon to live next to a school where as there are no public health or safety concerns with a marriage which is inherently a private affair.
The Gay Numbers
@petted: My core point is that this is a question of first impression (meaning there can no on point case law) since this question has not come before the Court before. the closest cases, which are not close at al, are the due process cases , but those are specifically issues of which majority thinking is a part of the test for determining due process, but that’s not the case with equal protection or fundamental rights. thus the courts predicament and his. I get why he frames it as he does. Although, with your analogy I did not know that criminals aer a suspect class in CA? Is that true? he wants to keep the iniative process as free as possible without making it even more messy while at the same time addressing the uniqueness of the conflicting sections of the California constitution here. He’s trying to fashion a narrowly tailored rule. I am just saying his arguments produce a contradiction when comparing the early sections to the section on invalidation. He, however, again, does support the most important concept- that there is a conflict. And he does provide the court, if they choose his route, with another avenue for overturnning 8. So who knows. Maybe his approach despite its contradiction is one they will accept for now.
Glenn I
Did Gerald Uelmen or any of the other unnamed legal analysts predict the Court’s summer decision legalizing same-sex marriage?
The California Supreme Court took a year and a half to craft that decision. A year and a half! If they had eyes to see and ears to hear they saw that the opponents of marriage were ginning up a constitutional amendment campaign. Perhaps the justices went ahead and invalidated Prop 22 (the earlier statutory initiative) even knowing that a more robust amendment was on the horizon which they would not be able to invalidate. They’d already taken a year and a half, was there a law that required them to issue the judgment before the amendment came up for a vote? Alternately they could have, as indeed the Yes on 8 campaign requested, stayed their ruling to see how the amendment battle played out, thus saving themselves the trouble or extra heartache of annulling legally entered-into marriages. But they didn’t. Were they just hoping the amendment would be voted down? The opinion reveals a lot of research into the situation of other states (& recall, Prop 22 passed with more than 60% of the vote) so the justices ought not to have been under any illusions there. If they crafted an opinion so easily overruled by a simple majority vote (after a campaign based on lies), why did they bother?
That 4 of the 7 justices signed on to a decision that saw marriage equality as a human right is what makes me optimistic. If they took the political risks of allowing gays to marry once, it seems to me there’s a good chance they will again. Be under no illusion that the wingers will let them alone come the retention vote in a couple years even if they uphold Prop 8; the horrifying legalizing of gay marriage will neither be forgiven nor forgotten by our foes.
Dick Mills
Brown’s argument, on it’s face, does have a lot of appeal. Basically, he says that the Legislature is barred from violation section 1, article 1 of the constitution, and that the Legislature (through the amendment process) granted to voters the right to amend the constitution through an initiative amendment, but that the voters in turn are equally barred from violating section 1, article 1. In other words, the legislature can’t grant more authority to the voters than they themselves have.
And, the court may disagree with that, but the fact that there is no case law is merely a testament to the fact that in the history of the California constitution, no one has ever been successful at violating section 1, article 1. Whatever happens, this case will be precedent setting, and there is little reason to believe that this court will shy away from setting that precedent in favor of the rights of minorities. And not just the same-sex minority, but all minorities.
BrianPrince
In any survey level political science course, we learn about Constitutional Rights and majority tyranny… we learn of the “safe-guards” built in, to prevent it. I’m glad to see such a high government offical return to to the roots of the liberties.
I don’t necessarily know that it’ll be THE deciding factor in the Supreme Court’s decision, but I definitely think that a well worded Amicus brief from the Atty. Gen., Lambda, and a few other activist sources may well push the justices one direction or the other.
Write on, bro, write on!
Butthead
Proposition 8 has more to do with the definition of marriage than with anything else. Our society has guided itself by a constitution which was written by men who believed in a God. Today’s licentious society has very little respect for Faith-based beliefs and have no moral compass to guide their behavior. They cling to a document we call a “Constitution” whenever they wish to justify a behavior. Proposition 14 had to do with the protection of the rights of a RACE to fair housing policies. Last I checked, the HOMOSEXUAL community was not a RACE, but a lifestyle. This has more to do with legitimizing their IMMORAL behavior so that society can accept them as normal. Marriage is the foundation of the family and its original intention was not simply to unite a man and a woman, but a means for propagation. The promises kept in a marriage create legacies and those broken wreak havoc and pain. As a society we hold individuals to an extremely high standard and punish them harshly (divorce) for not meeting those standards. And now we are weakening the definition of marriage even further by introducing immoral behavior into the mix. Most think this is progress, but like Rome and Greece, which disregarded their moral principles for lusts of the flesh (Romans 1), this will contribute to our demise.
Romans Chapter 1:21-27
21For although they knew God, they neither glorified him as God nor gave thanks to him, but their thinking became futile and their foolish hearts were darkened. 22Although they claimed to be wise, they became fools 23and exchanged the glory of the immortal God for images made to look like mortal man and birds and animals and reptiles.
24Therefore God gave them over in the sinful desires of their hearts to sexual impurity for the degrading of their bodies with one another. 25They exchanged the truth of God for a lie, and worshiped and served created things rather than the Creator—who is forever praised. Amen.
26Because of this, God gave them over to shameful lusts. Even their women exchanged natural relations for unnatural ones. 27In the same way the men also abandoned natural relations with women and were inflamed with lust for one another. Men committed indecent acts with other men, and received in themselves the due penalty for their perversion.