PROP 8 CHALLENGE UPDATE: From today's L.A. Times [View All]

[Zomby Woof]

Put on your constitutional scholar caps, because this requires some deft mental maneuvering. The gist is that California AG Jerry Brown's legal brief filed recently requesting that the state Supreme Court overturn Prop 8, contains some points that could be used as arguments against the reversal. One of the major legal arguments that has been presented against Prop 8 is that it calls for such a major revision of the constitution, that the voter-approved initiative alone is insufficient to carry it out. Rather, a traditional amendment process via the legislature is the only way to enact such a major change (and negation of a civil right upheld by the state court earlier this year). However, Brown may be presenting this as a preemptive strike against Prop 8 supporters and the legal arguments Ken Starr and his pack will likely have in their arsenal. I want to trust Brown will do what is best, and that just because he believes the 'initiative vs. amendment' argument is possibly insufficient for his case, it doesn't mean there aren't plenty of arguments which are effective. A good attorney will always be prepared to know the full strengths and weaknesses of their arguments beforehand, so as to better prepare their case. I believe if he goes to the heart of the very argument the SC used in their affirmative decision earlier this year - that California's liberties include the right to marry - it could set up a positive outcome. Expect the usual howling and whining from conservatives about "legislating from the bench", if Brown should prevail for the Overturn 8 cause. Get thee to a civics class, wingnuts.


Here are some highlights from the article and a link for your perusal:


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.

More: http://latimesblogs.latimes.com/lanow/2008/12/california-atto.html