As reported earlier, Attorney General Jerry Brown submitted his response to three lawsuits made my marriage equality advocates seeking to overturn Prop. 8. The Attorney General:
“Steered clear of taking a position on the validity of the voter-approved ballot measure, which restored California’s ban on gay marriages. Instead, the attorney general argued that the justices must agree to review legal challenges to Proposition 8 to “provide certainty and finality in this matter.”
While Brown’s position is that all the marriages performed before Nov. 4 are still legal, he asked the court not to issue a stay on the gay marriage ban as it would cause further confusion. None of the proceedings today dealt with the issue of the validity of Prop. 8, but rather, whether the court should address the question.
In related news, UC Hastings College law professor Brian E. Gray believes a Colorado case that went to the U.S. Supreme Court may have a better argument for repealing Prop. 8 than the current process-based argument presented in the suits. The case, Romer vs. Evans was over Colorado’s Proposition 2, which barred the state from passing any law which “whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships” are the basis of a claim of discrimination. Gray writes:
Following the enactment of Colorado’s Amendment 2, its opponents filed suit claiming that it unlawfully singled out gays and lesbians as a class to deny them rights that other citizens not only possess but take for granted. These rights include access to housing, government services, public accommodations and public and private employment opportunities without regard to an individual’s race, sex, religion, age, ancestry, political belief or other characteristic that defines each of us as a unique human being. Amendment 2, the opponents argued, therefore denied gays and lesbians the equal protection of the laws, which is a guarantee of the 14th Amendment to the U.S. Constitution.
To the surprise of many, the U.S. Supreme Court agreed.
He argues that Prop. 8 has the same flaws as Prop. 2, namely that “it provides that gays and lesbians — alone among consenting adult couples — shall not have the opportunity to enjoy the rights, privileges and social approbation conferred by the status of lawful marriage” and points to Justice Kennedy’s decision on Romer vs. Evans, where he concluded “a classification of persons undertaken for its own sake, something the equal protection clause does not permit.”