Shortly before the relevant legal deadline expired today, California Attorney General Jerry Brown filed a lengthy legal brief with the California Supreme Court asking the court to overturn Proposition 8 in its entirety. Brown contends that the right to marry is "inalienable" and further contends that such a right may not be eliminated by the initiative process. This move was a surprise in that Brown had previously said he would defend the new law despite his personal misgivings, which an Attorney General is usually expected to do.
RbR will be pleased to learn that--among other things--the brief argues explicitly that an amendment which eliminates basic rights is impermissible because the California constitution was designed to prevent such, "tyranny of the majority." (RbR raised this exact issue over a month ago.)
Friday, December 19, 2008
Go, Jerry!
Posted by Dr. Strangelove at 11:19 PM
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9 comments:
Yes! Way to go Jerry!
Guess who is running for the Democratic nomination for governor and needs lots of pink money to do it?
I am just reading the brief. Brown makes an interesting argument. He disagrees that Prop 8 is a wholesale "revision" to the constitution rather than an "amendment." The petitioners seeking to overturn the law claim it is a revision. However, he argues that the process of initiative amendment to the constitution cannot encompass the ability to abrogate a fundamental right "without a compelling interest." Actually, Brown simply seeks to exempt Article I (the declaration of rights) from the initiative-amendment process through a non-textual constitutional argument based on the history and design of the constitution, plus political theory. It is the sort of argumentation that conservatives claim to hate, although they invoke it for the "separation of powers" and "unitary executive" theories. It is very, very clever and, I think, really is the kind of opinion this CA Supreme Court might issue. Congratulations, Jerry.
LTG --
I have no idea what you just said. Can you dumb it down a shade and maybe make a new post on the subject?
I also have some chores I'd like you to run :)
Hmmm. I'm with USWest on not really understanding what's going on (and on getting LTG to do chores ;-p), but it's sounding good, so:
Go Jerry!
By the bye, how did the whole no gays for a day thang go in the end? Much media / impact / result?
I think I understand you LTG, but if you can drop around I've got some weeding to do (admittedly it is 30 degrees here and the cricket is on, but I can pay with a good Shiraz, assuming Melbourne is not to far...).
What would be the factors (history and design as ou say) that would exclude that part of constitution from modification?
KThx.
The Day without a Gay thing was a complete dud, pretty much. The idea was to stay home from work and boycott all businesses. But that was doomed to fail. I mean, if any gays did manage to take the day off work, the one thing they would absolutely do is go shopping :-)
Pity. I did wonder if it was doomed to fail simply because of the number of people who simply didn't want to be outed for whatever reason.
I've seen many people arguing that being gay isn't as bad as being race xyz in terms of being discriminated against, because you can hide being gay, but they don't seem to realise that it cuts both ways, and that there are so many people who have to hide being gay. -Sigh-
But anyway, you're right - shopping was always happening!
Article 1 of the CA state constitution states: "SECTION 1. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing
and obtaining safety, happiness, and privacy."
Jerry Brown is arguing, if I read LTG's posting correctly, that this Article is the fundamental basis of the State Constitution and it cannot be abrogated by any citizen referendum. The implication being that only a state constitutional convention would be able to change Article 1. That would involve courts, legislatures and the like.
When the CA Supreme court first ruled in favor in gay marriage, it did so on the grounds that marriage is a civil right that all citizens must enjoy. And in so doing, they no doubt looked at Article 1. So Brown is accepting that as settled law. No need to revisit that issue. He is choosing to attack from a different position.
LTG can correct me if I am wrong. But rather than arguing over the *meaning* or *interpretation* of the CA State Constitution, Jerry is using historical arguments about the intent of the framers and generally accept political science theories. In other words, it appears that Jerry Brown is saying, "Dude's, I am not gonna get into a pissing match with you over the meaning of Article I. That's like so totally over as the Court has spoken. The meaning and interpretation is a given. Instead, I am gonna tell you that you ain't got any right to overturn Article I and that is what Prop 8 does, by denying marriage rights.
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