With arrogance worthy of the Spanish Inquisition, leaders of the anti-civil rights "Proposition 8" group filed a brief 'commanding' the California Supreme Court to 'bow' to their will and nullify 18,000 marriages. In other words, "Happy Holidays, California! And here's your gift: a great big shiny box of lives destroyed." Ah, good times.
Luckily, California Attorney General, Jerry Brown, filed his own brief asking that the court nullify Proposition 8 on the grounds that it extinguishes civil rights guaranteed by the U.S. Constitution.
The first report comes from Lisa Leff at the Sacramento Bee:
SAN FRANCISCO -- The sponsors of Proposition 8 asked the California Supreme Court on Friday to nullify the marriages of the estimated 18,000 same-sex couples who exchanged vows before voters approved the ballot initiative that outlawed gay unions. The Yes on 8 campaign filed a brief arguing that because the new law holds that only marriages between a man and a woman are recognized or valid in California, the state can no longer recognize the existing same-sex unions..."For this court to rule otherwise would be to tear asunder a lavish body of jurisprudence," the court papers state. "That body of decisional law commands judges - as servants of the people - to bow to the will of those whom they serve - even if the substantive result of what people have wrought in constitution-amending is deemed unenlightened." (link)
I am no constitutional expert, but I am pretty sure that the the only time a legal brief counts as a commandment is when God writes it--on stone (see, e.g., The Bible).
The Los Angeles Times sums up the Attorney General's brief to the court and the subsequent rattling chains of the "Yes To 8" inquisitors:
In a surprise move, state Atty. Gen. Jerry Brown asked the California Supreme Court on Friday to invalidate Proposition 8. He said the November ballot measure that banned gay marriage "deprives people of the right to marry, an aspect of liberty that the Supreme Court has concluded is guaranteed by the California Constitution."
It is the attorney general's duty to defend the state's laws, and after gay rights activists filed legal challenges to Proposition 8, which amended the Constitution to ban same-sex marriage, Brown said he planned to defend the proposition as enacted by the people of California.
But after studying the matter, Brown concluded that "Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification."
Backers of Proposition 8 expressed anger at Brown's decision not to honor the will of voters, who approved the measure in November. "It's outrageous,"said Frank Schubert, campaign manager for Proposition 8. (link)
What is sad in this exchange--or maybe frightening--is the total ignorance of U.S. constitutional democracy exhibited by the Prop 8 backers.
The idea that civil rights can be stripped by a simple majority plebescite is not just unethical, but actually violates the principles on which our system of government is based. First off, it is unconstitutional to pass laws that deprite citizens of rights guaranteed in the U.S. Constitution (e.g., equal protection), a basic point the Prop 8 folks do not seem to get. Second, the purpose of the judiciary is to uphold the Constitution as a form of systemic balance to the other two branches of government--not to bow down to them.
The language of the 'Yes To 8' brief suggests that group see itself in a moral struggle not just to strip gay people of rights, but to mobilize public against the California judiciary.
Time will tell which effort will hold the day. However, I suspect there are few judges in California (or anywhere else) who respond well when lawyers 'command' them to 'bow' down. Come to think of it, nobody responds well. And when you think about it, that really is the point of this whole Prop 8 nonsense, is it not? Try to strip American citizens of their equal rights, and when that does not work: raise a bloody stink about the supposed despotic decline of the United States judicial system.
© 2008 Jeffrey Feldman, Frameshop