Jerry Brown's Supreme Court Gambit Only Undermines Challenge to Prop 8

The California Supreme Court, in one of its most important cases in years, is considering a challenge to Prop 8, the constitutional amendment banning gay marriage. If the Court upholds Prop 8, one of the people you can blame is Attorney General Jerry Brown.

But wait a minute. Didn't Brown make headlines recently by filing a brief in the Supreme Court arguing that Prop 8 should be overturned? Yes, he did. And that's the problem.

In cases before the Supreme Court, it is the Attorney General's job to defend California's laws unless they are so plainly invalid that no plausible defense can be offered. However objectionable on moral grounds, Prop 8 is not legally indefensible. Brown knows that. By switching sides in the Supreme Court, the Attorney General ripped up his job description -- a political gambit that no doubt pleases his supporters but, ironically, only makes it harder for the Court to overturn Prop 8.

The California Supreme Court is in a tough spot in the Prop 8 case. It went out on a limb a year ago to strike down a state statute forbidding same sex marriage, ruling that the law violated California's constitution. Prop 8, which voters enacted by a margin of 52% to 48%, responds directly to that controversial decision by amending the state constitution, thereby removing -- or attempting to remove -- the basis for the Court's prior ruling.

The current Prop 8 case poses a test of the Court's legitimacy, its most valuable asset, at a crucial moment in its history. The Court is the only institution of California government that is seen as able to take on hard issues, to decide them in the public interest and to act decisively. Although its authority has never been greater, that authority derives from the public perception that the Court is above the political fray.

Should the Court strike down Prop 8 -- overriding a political majority for the second time on the issue of same sex marriage -- it must do so for reasons that are seen as legitimate and legally convincing, even though most Californians may disagree with the outcome. The Court must avoid the appearance that it is asserting a political preference disguised in legal principles. That is a tall order.

In this context the last thing supporters of gay marriage need is a grandstanding attorney general who, by abandoning his assigned institutional role, creates doubts about the fairness of the Supreme Court proceeding and provides an opening for Prop 8 supporters to argue that the case has been transformed from a legal to a political contest in which victory goes to the most powerful interest groups.

Can the Court still overturn Prop 8 in a way that will not compromise its legitimacy? I think so, although the best course at this stage may be a ruling grounded in the US Constitution instead of the California Constitution. Under a federal approach, Prop 8's problematic status as a state constitutional amendment loses relevance: vis-a-vis the US Constitution's equal protection guarantee, Prop 8 is no different than any state statute or city ordinance.

Deciding the case on the basis of the federal constitution also would legitimize the Court's ruling because application and interpretation of federal law is part of all state supreme courts' essential function in the original federal judicial scheme. Legitimacy also comes from the fact that the Court's decision would not be the last word, but would be subject to review by the US Supreme Court.

Of course, the availability of federal Supreme Court review is also a disadvantage of this strategy. Still, the US Supreme Court might decline to review the case. Or it could review it and surprise everyone with a decision overturning Prop 8. Let's just hope Jerry Brown keeps his distance from any further judicial proceedings. With friends like Brown, Prop 8's opponents don't need adversaries.
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Peter Scheer, a lawyer and journalist, is executive director of the California First Amendment Coalition.

Comments

[carsntrucks]

Good article, Peter Scheer. One of the more insidious elements of the Prop 8 issue is that AG Jerry Brown took a side in a state ballot initiative, when his job is to uphold the laws of the state, whether he agrees with them or not. It's not his job to be the gay lobby's white knight.

I wouldn't be surprised if this comes up again when he runs for re-election in 2010.

Gay marriage supporters DO NOT want this to go to the SCOTUS.

[StevenKeirstead]

Well, I hope the California Supreme Court will strike Prop 8 down on the merits and not worry about politics and whether agreeing with Jerry Brown might tarnish their reputation. Appearances should not matter if right is done.

It seems that the argument that Prop 8 was a Constitutional Revision and not a Constitutional amendment should have been decide by the Court before the election in November, but sometimes Justice is slow. It is better to decide now that mistakes were made in the processing of Prop 8, than to let inequality under law prevail.

[M1]

I think Jerry Brown did the right thing! I am confident prop 8 will be overturned. Courts are reluctant to give up their right to have reviewing power and allowing prop 8 to remain valid would do just that.

[bbbtmenw]

PART 1 of 5

Although I am happy that you are increasing awareness of the current stages in the battle for EQUAL RIGHTS for GAYs in America, you overshadow the legal arguments and the previous ruling by the California State Supreme Court.

The State Supreme Court has designated Gays as a “suspect class” and marriage as a civil right. This places Gay men and women in a protected class that the government must go above and beyond to ensure they receive the SAME CIVIL RIGHTS as other citizens.

Marriage as a civil right ensures that all Californians should be allowed to marry the one they love. Any argument against this fundamentally changes the constitution of California, and conflicts with the Constitution of the United States.

[smithshaw08]

I have joined you to fight for the repeal of DOMA. Civil rights must be afforded to everyone.

[bbbtmenw]

PART 2 of 5

If the state Supreme Court allows Prop 8 to remain in effect, it would say that by a simple majority, a fundamental civil right can be stripped away from a protected group. This has never been the way things have moved in the United States. Civil Rights have been decided in the courts and simple majorities have not been allowed to be the last word on these issues.

If the court allowed Prop 8 to remain, it would be ruling against itself and its core beliefs.

Attorney General Brown's support for overturning Prop 8 does not come as a disadvantage, it helps to show that it is unconstitutional. His view was well known and more damage would have been caused by having him defend Prop 8 and be accused of doing a poor job for "Politics". His job is also to protect the constitution and the people of California.

[bbbtmenw]

PART 3 of 5

The Supreme Court is allowing the defense to be done by the lawyers for the leaders in this hate-filled revision of the constitution. Their lack of moral high-ground and a defense based on the same rulings that would have denied many freedoms and liberties we currently have, will not prevail.

The court needs to look at their own ruling and whether this is an amendment or a revision. By their previous ruing last may, it must be defined as a revision and must be overturned because the process was not followed correctly.

[jhNY]

"The Court is the only institution of California government that is seen as able to take on hard issues, to decide them in the public interest and to act decisively." Is seen by whom? Perceptive journalists? Politically savvy commentators? Ordinary Californians? All of them?

This is a bad spot in the essay to employ the passive voice, and the statement cannot stand as a mere declaration of fact, but rather would seem to require substantiaton which the author does not supply.

[bbbtmenw]

PART 4 of 5

If the state Supreme Court ruled in favor of allowing Prop 8 to remain in effect, they would be opening the door to many more fundamental changes. If simple majorities could overrule civil rights, we would still have segregation in many states and, with the hate speech now and during the election process from the same “non-conservative non-Christian conservative Christians”, a form of slavery in a few; Lower than prevailing wages for workers, internment of citizens without fair representation, and citizens privacy rights being violated (Oh, we’ve had that already under Bush).

I for one will not stand for the hypocrisy in a ruling to allow Prop 8 to remain, if it occurs. I am confident that it will not.

[bbbtmenw]

PART 5 of 5
Personally, I would like to see the citizens of California and the United States who believe their religious arguments against Gay Civil Rights and views toward marriage to be measured by introducing amendments to make marriage illegal or, as Leviticus offers in the Bible, make adultery a capital crime. Neither of these issues would ever make it through a vote, yet each would protect “straight marriage” and each follows in the bigoted arguments from the proponents of Prop 8.

My efforts will be to bring the Defense (destroyer) Of Marriage Act to an end. D.O.M.A. does not allow Gays to have federally recognized civil rights even when Prop 8 is overturned. This is the real battle. If D.O.M.A. was overturned, Gays would be allowed to marry in Connecticut and their marriages would need to be recognized in EVERY state. I would be able to marry a foreign partner and have their new citizenship recognized. This is the real battle for equality.

Look for me at a Sit-In for Civil Rights near you.

[suejester]

So what is stronger the constitution or the will of the people?

[carter2004]

"Will of the people" is certainly NOT a very dominant force in the area of individual rights. If it was, your kids would probably still be in segregated schools.

The court doesn't interpret "the will of the people." That may be surprising to you, but it's just the country we live in.

[suejester]

My question was more a rhetorical question.

I think it is ridiculous that this even needs to rehashed in the CA Supreme Court. The rights of the minority should never be voted on by the people.

I don't understand how any court system in this country can overide the 14th admendment.

The fact that this is happening could have such reprocussions if the CA Supreme Court allows the ruling to be overturned by the prop 8 admendment.