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December 21, 2008
Former Governor Moonbeam gets really spaced out on Prop 8
Abraham Lincoln spoke of "government of the people, by the people, for the people." Now California Attorney General Jerry Brown (D), the chief law enforcement officer, wants to do some elaborate political and legal maneuvering to bring about government for some politically correct people, by some politically correct people, for some politically correct people as he goes to go to the California Supreme Court asking them to overturn Proposition 8, a referendum that successfully passed on election that banned gay marriage.
But in his filing, Brown, who personally supports same-sex marriage, offered a novel legal theory to back his argument that the measure should be invalidated.
The California Constitution protects certain rights as "inalienable," Brown wrote. Those include a right to liberty and to privacy, which the courts have said includes a person's right to marry.
The issue before the court "presents a conflict between the constitutional power of the voters to amend the Constitution, on the one hand, and the Constitution's Declaration of Rights, on the other," Brown wrote.
The issue "is whether rights secured under the state Constitution's safeguard of liberty as an 'inalienable' right may intentionally be withdrawn from a class of persons by an initiative amendment."
Voters are allowed to amend other parts of the Constitution by majority vote, but to use the ballot box to take away an "inalienable" right would establish a "tyranny of the majority," which the Constitution was designed, in part, to prevent, he wrote.
In an interview, Brown said he had developed his theory after weeks of consultation with the top lawyers in his office. "This analysis was not evident on the morning after the election," he said.
Was this analysis evident the morning before the election? Or when it was first placed on the ballot? Was it when gay marriage opponents first began publicly discussing their plans to place Proposition 8 on the ballot? Or did it first become evident when a politically correct group--gay rights organizations--shrewdly using publicity and hate filled tactics by targeting one politically incorrect group--Mormons--out of many who opposed gay marriage, pressured the Attorney General?
And what do some of California's legal scholars think of AG Brown's latest legal twist?
Santa Clara University law professor Gerald Uelmen, an expert on the state high court, said Brown's argument "turns constitutional law on its head." Uelmen said he was unaware of any case law that supported Brown's theory.
He added that he expected the state Supreme Court to reject the argument. "I think it is much too radical for this court," he said.
What exactly is the responsibility of the Attorney General, the state's chief law enforcement officer?
Goodwin Liu, associate dean and professor of law at UC Berkeley's Boalt Hall School of Law, said it was "extraordinary for the chief law enforcement officer of the state to decline to enforce a law -- even on the grounds that it is unconstitutional."
Jerry Brown was once governor of California. There are those who think he would like to be governor again. If, as Attorney General and as a former governor, he can disobey a law he doesn't like, does the ordinary citizen have the same right?
"Whether or not it will carry the day," he added, "I have no idea."