More on Brown’s Reversal

Jerry Brown, California’s Attorney General, decided that he would not defend Proposition 8 before the State Supreme Court.  That’s been reported previously.  What’s interesting about his stance, though, is that he seems to have eviscerated gay rights proponents’ arguments while at the same time helping the same-sex marriage movement in general.

From a Los Angeles Times blog post:

California Atty. Gen. Jerry Brown’s decision to ask the Supreme Court to overturn the state’s ban on same-sex marriage has been widely hailed as a victory in the fight for gay rights.

But far less attention has been paid to Brown’s lengthy written rejection of some of the principal legal theories put forth by gay marriage advocates in their bid to roll back Proposition 8. In his brief filed on Friday, Brown said he believed a ban on same-sex marriage undermined fundamental liberties enshrined in California’s Constitution.

But the larger chunk of his 111-page legal filing was devoted to shooting down a more technical legal argument used by gay marriage supporters. Brown said attorneys challenging the measure had “failed” to prove their point that the ballot measure offers such a major revision to the state Constitution that it cannot be enacted by a voter-approved initiative alone.

Brown’s decision to throw the weight of his office behind gay marriage has sparked debate over whether his arguments will actually do more harm than good for those hoping to overturn the initiative. Some opponents of gay marriage say they are relieved that Brown, who personally supports gay marriage, did an about-face and will not be offering a half-hearted defense of the initiative before the Supreme Court. At the same time, they say, Brown’s legal position helps undermine a key claim that voters alone cannot decide an issue that makes such a major change to the state’s Constitution.

“That’s game, set and match,” said John C. Eastman, a director of the conservative Center for Constitutional Jurisprudence at the Claremont Institute, who plans to file a brief supporting the ballot measure. “I think he has greatly bolstered the arguments of the Prop. 8 folks.”

Other experts, however, say Brown has carefully forged a novel legal path that the state’s highest court could follow to overturn the initiative. That could be particularly important if the justices reject the other arguments offered by opponents of the measure. “Strategically, I think it’s a clever move,” said Jesse H. Choper, a professor of law at UC Berkeley.

“It gives the California Supreme Court another way to invalidate Prop. 8.” Immediately after the Nov. 4 election, Brown pledged to defend the initiative, saying he believed it was a properly approved amendment to the Constitution.

In an interview Tuesday, Brown said he changed course after attorneys in his office examined all the legal implications of the measure. He said he was particularly struck by the idea that a ban on same-sex marriage conflicted with the Constitution’s language protecting liberty, which he said the Supreme Court ruled earlier this year included the right to marry.

“The more I reflected on the argument, the stronger I thought it was,” he said. “What is a guarantee worth if you can strip it away by calling it an amendment?” he said.

– Jack Leonard and Victoria Kim

Disclaimer: I am not a lawyer.

The same-sex marriage proponents’ argument, as I understand it, is that the constitutional amendment enacted by Proposition 8 amounted to a substantial change in the state Constitution and as such required a  two-thirds majority, not the simple majority the measure received.  To my non-legal mind, that strikes me as an argument that’s not likely to work.  The proposition had to pass a legal test before it was placed on the ballot, and this issue would have been raised before it was allowed to go before voters.

Jerry Brown’s argument seems much more likely to work.  He’s cut the No on 8 people’s legs right out from under them legally, though.  For my money, if the same-sex arguments were going to work (in court, anyway), they were going to work based on equal protection, not some arcane argument based on whether enough people voted for the ballot measure.

In any case, Brown has helped the same-sex marriage movement by giving the Justices another legal leg to invalidate Prop 8.  Let’s hope they do.