CA Attorney General Jerry Brown’s Argument Against Prop 8

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rights secured under the state Constitution’s safeguard of liberty as an ‘inalienable’ right may intentionally be withdrawn from a class of persons by an initiative amendment.”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.”