Jerry Brown: Gay-marriage ban should be invalidated

[scytherius]

Source: Los Angeles Times

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."

Read more: http://latimesblogs.latimes.com/lanow/2008/12/attorney-genera.html?cid=143151484#comments

---

Excellent. While I expect the CA Sup Ct to overturn Prop 8, even if they don't, with this kind of support, the voters will in 2010 or 2012.

[David Zephyr]

1. Profile in Courage. But Jerry has always been just that.

Jerry!

[Sultana]

2. Prop. 8 should have never been on the ballot

Inchallah, I hope it will be overturned.

[and-justice-for-all]

49. Exactly! nt

[liberalmuse]

3. I love you, Jerry Brown.

Ironically, I also have a thing for Jello Biafra. Nonetheless, Jerry Brown has been an advocate for all that is right in the world for more years than I can remember. Good for him!

[jaundicedi]

4. I was actually expecting that to happen.

Jerry runs his Catholicism through a Zen Buddhist filter.

[mdmc]

5. Jerry!

I was pullin for him in 92... he won colorado that year... :kick:

[prostock69]

6. Calif. AG urges court to void gay marriage ban

Source: AP

SAN FRANCISCO – The California attorney general has changed his position on the state's new same-sex marriage ban and is now urging the state Supreme Court to void Proposition 8.

Jerry Brown filed a brief Friday saying the measure that amended the California Constitution to limit marriage to a man and a woman is unconstitutional. He says it deprives gay couples of a fundamental right.

After California voters passed Proposition 8 on Nov. 4, Brown said he would fight to uphold the initiative in his role as attorney general, even though he personally voted against it.

He submitted his brief in one of the three legal challenges to Proposition 8 brought by same-sex marriage supporters.




Read more: http://news.yahoo.com/s/ap/20081220/ap_on_re_us/gay_marriage_lawsuits

---

There's hope, people!

[GodlessBiker]

7. Go Jerry, go!!!

[CitizenPatriot]

8. help the cause

I am truly sickened now...after the UN and now, with the attempt to backdate and invalidate....the fundys make it hard to feel human. I'm trying so hard not to be filled with hate -- to be the person I was raised to be; one who can accept those they don't agree with (so long as they aren't legislating bs), but they never quit.


Petition to kill Prop 8 if you're in CA:

http://www.petitiononline.com/equlity/petition.html

donate to kill Prop 8:

https://secure2.convio.net/laglc/site/Donation2?idb=177...


And as a bonus-- For each donation of $5 or more at www.InvalidateProp8.org, the Center will send Monson a postcard to let him know a donation was made in his name to fund legal organizations fighting Prop 8 and to fund grass-roots efforts supporting marriage equality.

[jetphixer]

9. Stright persons comments

Just in passing i am a straight person an yes in reading the comments one of them was me I am Catholic going on Buddhist, ow saying that I am glad Mr. Brown is taking this stand I do not like it wen peoples rights are denied or people are made not welcome. People like that FAT Christan NAZI Warren should be banned. I am wishing for the best outcome for every one concerned with this..I am also hoping he gets shooed in DC if the SOB shows up

[Odin2005]

10. Good.

I still can't believe that POS mesure passed on California of all places. :puke:

[Leftest]

20. It didn't pass by much, and

it only passed because so many religious people who don't normally vote came out to vote for Obama. People who don't normally pay attention to issues tend to vote how their churches or other influences influence them to vote. In this case it was largely a black vote who usually doesn't vote who made this measure only pass by a few points. What IS surprising to me is that of all people the black community? Of all people they are certainly one who should understand discrimination.

But I bet any money now after they've had a chance to see the protests raised that they'd vote differently if given the chance.

[Joe Bacon]

11. Kick it for Jerry!

THANK YOU JERRY BROWN FOR STANDING UP TO THE BIGOTS!

[CatholicEdHead]

12. Good for him

I hope Prop 8 can be overturned.

Of course expect it to return in 2010 if it is overturned now. :puke:

[Ken Burch]

13. Good for Brown.

He hasn't always stood for what's right(look at his horrible hard-right swing as governor in the late 70's) but he did the right thing on this.

Thanks, MR. A.G.

[JI7]

14. why do they describe this as a surprise move

he said the same thing even before the voting started.

[AnAnonymousDemocrat]

15. No, I don't think he did

Before the vote, he said he would defend the marriages licenses issues over the summer but defend Prop. 8 if it passed.

[trickyguy]

16. Congrats, Jerry. At least you understand what's at stake here.

And how to fix it. Proposition 8 was a hateful mistake from the beginning.

Which indeed did "deprive (gay and lesbian) people of the right to marry".

Basic commmon sense. Basic civil rights. O8)

[wundermaus]

17. Jerry Brown - A progressive in a position of Power -

Progressives, take note.

[Piewhacket]

18. Brown is completely consistent, here's why...

As AG he is obliged to defend the laws of California. All the laws.
Initially he concluded that Prop 8 would have to be defended, and said so.

But here's the catch.
Some laws are greater than other laws, and Brown has now concluded that
Prop 8 offends one of these.

The quote given above by the OP is not the "magic phrase" that explains all.
You have to know what to look for, but here it is.

Brown: "Proposition 8 must be invalidated because the amendment process cannot
be used to extinguish fundamental constitutional rights without compelling justification."

BAM!
Prop 8 offends a higher law BECAUSE it was passed by a majority under the initiative process,
and BECAUSE fundamental constitutional rights declared by the California Supreme Court are involved,
and BECAUSE a compelling justification is not present.
KA BAM!

Write that down, cause that will be (I think) the winning proposition (4-3).
I mention (in all modesty) that I brought this to DU in ... er looking ...
in my post of Nov 5 2008 "All Animals are Equal"
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=102x3585427#3585961

So nice to see Jerry agreeing with moi! Gives me the warm fuzzies. Hey!

Anyway Brown is being entirely consistent and doing his duty.
He is defending the laws of California.
He just is of the opinion that Prop 8 isn't one of them.

[Kolesar]

19. thanks for the analysis

Good morning

[Leftest]

22. Here, here...

This is one reason why we have a Supreme Court. It is absolutely within the jurisdiction of the Supreme Court to rule this vote constitutional or unconstitutional. If it in any way violates the inalienable rights of people, then, absolutely its not constitutional.

For example: Say I got the petitions necessary to put on the ballot a proposition that all registered republicans cannot drive a motor vehicle on public highways, and it passed by a majority vote from the people. I am sorry, but, that is not how our country works. We cannot by majority vote restrict the rights of some that others are allowed to enjoy. This is a fundamental reason why we have a Supreme Court.

Thanks for your analysis Piewhacket.

[myrna minx]

21. Thank you Jerry Brown. K&R n/t

[sakabatou]

23. Go, Jerry, go!

:D

[ruggerson]

24. recommended

[Idealism]

25. Calif. AG urges court to void gay marriage ban

Source: Associated Press

SAN FRANCISCO - The California attorney general has changed his position on the state's new same-sex marriage ban and is now urging the state Supreme Court to void Proposition 8.

In a dramatic reversal, Attorney General Jerry Brown filed a legal brief saying the measure that amended the California Constitution to limit marriage to a man and a woman is itself unconstitutional because it deprives a minority group of a fundamental right. Earlier, Brown had said he would defend the ballot measure against legal challenges from gay marriage supporters.

But Brown said he reached a different conclusion "upon further reflection and a deeper probing into all the aspects of our Constitution.

"It became evident that the Article 1 provision guaranteeing basic liberty, which includes the right to marry, took precedence over the initiative," he said in an interview Friday night. "Based on my duty to defend the law and the entire Constitution, I concluded the court should protect the right to marry even in the face of the 52 percent vote."


Read more: http://sg.news.yahoo.com/ap/20081220/twl-gay-marriage-lawsuits-1be00ca.html

[cliffordu]

26. A bit of good news in a week where there has been little good news on this issue.

[naaman fletcher]

27. How can a constitutional amendment be unconstitutional?

I can see how a CA constitutional amendment can violate the US constitution, but wouldn't that be a matter for the federal courts?

[Idealism]

28. Ultimately it will get to the SCOTUS

Its the only way to prevent these unconstitutional initiatives from being put on the ballot every two years, we've already seen the California Supreme Court to not be able to prevent repetitive motions even after they ruled it as unconstitutional.

[SoCalNative]

32. Because the argument used against Prop 8

is that it is NOT an amendment but rather a REVISION, because of the Court's ruling in May.

Revisions have to be proposed by legislative Constitutional convention.

[Igel]

54. And that's going to make it a very messy decision.

Expect casuistry and sophistry.

Why?

Because when the ballot measure was approved for the ballot there was no right, and it wasn't a revision. It was an amendment.

Since the ballot measure was placed on the ballot there's been no change to the text of the constitution. If the ballot measure was an amendment, doesn't that mean it's still an amendment?

No. Because while the words of the constitution didn't change, the interpretation was changed. The text which meant one thing now means another thing--even if the "another thing" is a superset of the meanings the text originally had.

So the ballot measure to amend the text is now become a ballot measure to revise an interpretation. Not an interpretation of long standing, but a recent interpretation. A recent revision, if you want, the expanding of a provision to include a class of people that wasn't included when the text was written and approved; there's almost certainly some jargon-based meaning to "revision" versus "added interpretation", but in non-technical English the distinction is moot. Unfortunately, legal jargon is technical English.

I assume that the court will find that its interpretation has always been the One True interpretation, even as intended by those who first wrote and instituted the constitutional language, so when the amendment was proposed for the ballot it was actually a revision and improper from the get-go. Most judges, like God, are jealous of their power and prerogatives, so I figure that there's a greater chance of Prop 8 being voided by a larger majority of the court than approved the revised interpretation of the constitutional language--it'll be seen as a slap-down of the court's authority, and that cannot be tolerated.

Then again, I may be wrong.

[Frank Booth]

38. This seems to be purely a matter of state law, so I don't think it will go to scotus.

Let's hope not anyway, since it has a much better chance of getting struck down by the Cal. Supreme Court then the federal Supreme Court.

[Idealism]

39. No, no I mean in the end it will have to be ruled on by SCOTUS

I agree, this is going to go first to Cal state Supreme Court, which should overturn the measure like they've done in the past.

But in the future, just like the Civil Rights Movement, change will have to come from the SCOTUS. It must be forced down Congressional throats.

[cosmicone]

53. Marriage is a state issue. SCOTUS has no jurisdiction. n/t

[Orrex]

30. Equal protection, maybe?

That's a good question.

[unblock]

35. at the federal level, at least, the more recent amendment is presumed to override

generally the thought is that the more recent amendment is intended to be a modification or refinement of the earlier version of the constitution and therefore should override. usually the amendment would make no sense otherwise.

[jetphixer]

36. Constitutional Amendment

If my memory serves me correctly i believe a state cannot make a law that is in conflict with Federal Law or against the US Constitution. A states constitution cannot be in conflict with the US Constitution The only way to do this is amend the US Constitution. And that is an extremely hard thing to do by design. This one takes a 3/4 vote in congress a pres signature than ratified by 3/4's of the states'. If i remember right there are or is amendments still out there from the early to mid 1800's waiting for ratification by the states. It is extremely hard to do.
Now to answer the ? yes it is against fed law to do this the state should take something like this through the federal court system!If the state court will not null the law out the partitioner needs to take his case up through the federal courts. To the US Supreme court. Now in the case of this the Jesus freaks can keep it going appeal after appeal and the supreme court is stacked now with bushies. It is easiest to go the route of having the state supreme court remove it from the states constitution.

[AnAnonymousDemocrat]

37. Read the news story for your answer nt

[JDPriestly]

40. Good question. Maybe Proposition 8 could be viewed as

contradicting another part of the Constitution and thereby creating ambiguity in the Constitution. If GLBTs have equal rights, and marriage is a fundamental right, then if Prop. 8 takes away the right to marry to GLBTs, we have two equally binding provisions in our Constitution that are incompatible. Proposition 8 did not deprive GLBTs of other rights, just of the right to marry.

Here is the language of Prop. 8: "only marriage between a man and a woman is valid or recognized in California"

http://ballotpedia.org/wiki/index.php?title=California_Proposition_8_(2008)

Here is Article I of the California Constitution:
ARTICLE 1 DECLARATION OF RIGHTS


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.

SEC. 24. Rights guaranteed by this Constitution are not dependent
on those guaranteed by the United States Constitution.
In criminal cases the rights of a defendant to equal protection of
the laws, to due process of law, to the assistance of counsel, to be
personally present with counsel, to a speedy and public trial, to
compel the attendance of witnesses, to confront the witnesses against
him or her, to be free from unreasonable searches and seizures, to
privacy, to not be compelled to be a witness against himself or
herself, to not be placed twice in jeopardy for the same offense, and
to not suffer the imposition of cruel or unusual punishment, shall
be construed by the courts of this State in a manner consistent with
the Constitution of the United States. This Constitution shall not
be construed by the courts to afford greater rights to criminal
defendants than those afforded by the Constitution of the United
States, nor shall it be construed to afford greater rights to minors
in juvenile proceedings on criminal causes than those afforded by the
Constitution of the United States.
This declaration of rights may not be construed to impair or deny
others retained by the people.

SEC. 31. (a) The State shall not discriminate against, or grant
preferential treatment to, any individual or group on the basis of
race, sex, color, ethnicity, or national origin in the operation of
public employment, public education, or public contracting.
(b) This section shall apply only to action taken after the
section's effective date.
(c) Nothing in this section shall be interpreted as prohibiting
bona fide qualifications based on sex which are reasonably necessary
to the normal operation of public employment, public education, or
public contracting.
(d) Nothing in this section shall be interpreted as invalidating
any court order or consent decree which is in force as of the
effective date of this section.
(e) Nothing in this section shall be interpreted as prohibiting
action which must be taken to establish or maintain eligibility for
any federal program, where ineligibility would result in a loss of
federal funds to the State.
(f) For the purposes of this section, "State" shall include, but
not necessarily be limited to, the State itself, any city, county,
city and county, public university system, including the University
of California, community college district, school district, special
district, or any other political subdivision or governmental
instrumentality of or within the State.
(g) The remedies available for violations of this section shall be
the same, regardless of the injured party's race, sex, color,
ethnicity, or national origin, as are otherwise available for
violations of then-existing California antidiscrimination law.
(h) This section shall be self-executing. If any part or parts of
this section are found to be in conflict with federal law or the
United States Constitution, the section shall be implemented to the
maximum extent that federal law and the United States Constitution
permit. Any provision held invalid shall be severable from the
remaining portions of this section.

http://www.leginfo.ca.gov/.const/.article_1

[AntiFascist]

42. State constitutions generally duplicate the Federal Constitution...

but they can also elaborate on certain issues such as gay marriage or women's rights, as I understand it. There is an equal protection clause in the State Constitution which functions like the 14th Amendment to the Federal Constitution. Sexual orientation has been ruled a Suspect Classification which is afforded strict scrutiny under the CA state constitution as opposed to the federal level. Also, I believe that women are given more strict scrutiny in CA vs. the federal level as well.

bluedawg12 has a good posting about this stuff here:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=221x98255

Connecticut cited the California ruling in their marriage ruling. My understanding is that if more states set such a precedent, then it begins to build a good case for the Federal Courts, but it may not be a good idea for the Federal Supremes to address it now considering how conservative they are at present.

[Tesha]

47. Because it is in conflict with other, more-fundamental parts of the state constitution.

You can't have one part of the document saying "black" while the other
part says "white".

And that's exactly what you get when you look at Proposition 8's
amendment in the light of the "equal protection" clause.

Tesha

[cosmicone]

52. The amendment violates the California constitution. n/t

[Orrex]

29. Good for Brown!

That stupid, disgusting law is a prime example of the failure of direct democracy.

The only good thing about it is this: as delighted as the bigots are that it passed, they'll be that much more infuriated when it's struck down.


Fuck 'em.

[naaman fletcher]

33. well, the whole idea is..

that we use democratic means to decide certain things, but we are a Republic, and the majority is limited in what it can do by the Constitution of the US and the various state constitutions. Some states have initiative and referendum, others do not. I like the idea, in theory. For example, there is no way that the medical marijuana stuff would have gotten through legislatures.

Anyway, the problem here is that it was/is so easy to amend the CA constitution. A 50% vote? That sort of violates the whole idea of even having a constitution if it can so easily and quickly be changed.

[Orrex]

34. Right!

The whole Republic thing prevents the two wolves from out-voting the one sheep re: what's for dinner. At least, that's how it's supposed to work.

And you're definitely right about the stupidity of a 50% margin. Who's the asshat who came up with that one?


Welcome to DU, by the way!
:hi:

[AntiFascist]

43. The CA constitution also distinguishes between an amendment and a revision...

If an initiative changes the basic "governmental plan" substantially then it is considered a revision of the constitution and must pass through 2/3 of the legislature, or a constitutional convention first. There are excellent legal arguments by legal scholars, submitted as friend-of-the-court briefs, for why Prop 8 should be considered a Revision.

[Kaleko]

31. Great move, Jerry! Fulfill your duty, my man.

I imagine DUers are supporting you with few, if any, exceptions.

[ejbr]

41. Wow

I never imagined that an attorney general would have to catch up to my understanding of the law. But, I'll take what I can get!

[DUlover2909]

44. I have always liked Jerry Brown. Is he the same Jerry Brown who was governor?

Sorry, I haven't paid attention.

[Tesha]

48. Yes. (NT)

[HillbillyBob]

45. from cnn

http://www.cnn.com/2008/US/12/19/california.proposition/index.html?eref=rss_topstories


(CNN) -- Sponsors of the California ballot measure that banned same-sex marriage are seeking to nullify thousands of marriages between gay and lesbian couples performed after the state Supreme Court ruled them constitutional.
The passge of Proposition 8 left the future of thousands of marriages between same-sex couples unclear.

The passge of Proposition 8 left the future of thousands of marriages between same-sex couples unclear.

The sponsors Friday filed responses to three anti-Proposition 8 lawsuits with the state Supreme Court. The briefs also defend Proposition 8 against opponents' legal challenges, including an argument that the amendment needed a constitutional convention to be added to the state's constitution.

"We are confident that the will of the voters and Proposition 8 will ultimately be upheld," said Andrew Pugno, General Counsel for ProtectMarriage.com and the Proposition 8 Legal Defense Fund.

California Attorney General Edmund "Jerry" Brown called on the court to reject the initiative.

"Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification," Brown said in a written statement.

Rick Jacobs, founder and chair of the anti-Proposition 8 Courage Campaign, said he was "appalled" that the initiative's supporters wanted to nullify the same-sex marriages that are already on the books.

"The motivation behind this mean-spirited and heart-breaking action should not be allowed to be buried in legal brief," he said. "If Proposition 8's sponsors plan to destroy lives, they should at least have the courage to admit it publicly."
Don't Miss

* iReport.com: Your thoughts on same-sex marriage
* Map: How California voted
* In Depth: Same-sex mariage

Opponents filed suit quickly after the November 4 election in which Proposition 8 passed 52 percent to 48 percent, effectively reversing a California Supreme Court decision that it was unconstitutional to deny marriage licenses to same-sex couples.

The vote also prompted a series of protests, some aimed at supporters of the proposition.

The proposition, which added an amendment to the state constitution, defined marriage as between one man and one woman.

Opponents argue that the amendment cannot be applied retroactively, but proponents say the amendment is clear on that issue.

"Proposition 8's brevity is matched by its clarity," one of the briefs read. "There are no conditional clauses, exceptions, exemptions, or exclusions: 'Only marriage between a man and a woman is valid or recognized in California.'

" ... Its plain language encompasses both pre-existing and later-created same-sex (and polygamous) marriages, whether performed in California or elsewhere. With crystal clarity, it declares that they are not valid or recognized in California."

Opponents are also seeking to have the amendment nullified, arguing that it alters the state's constitution -- meaning the state Supreme Court's May ruling -- and therefore, according to state law, is a revision that requires a constitutional convention. Proponents of the amendment disagree.

"Petitioners' challenge depends on characterizing Proposition 8 as a radical departure from the fundamental principles of the California Constitution," their briefs said. " ... But that portrayal is wildly wrong. Proposition 8 is limited in nature and effect. It does nothing more than restore the definition of marriage to what it was and always had been under California law before June 16, 2008 -- and to what the people had repeatedly willed that it be throughout California's history."

California voters passed a ballot initiative in 2000 that changed the state's Family Code to formally define marriage in the state between a man and a woman. After San Francisco Mayor Gavin Newsom performed same-sex marriages in 2004, which were promptly annulled, Newsom and others sought to have the ballot initiative struck down.

The California Supreme Court did so in May, and same-sex marriages were performed legally in California a month later.

The court's ruling said the right to marry is among a set of basic human rights "so integral to an individual's liberty and personal autonomy that they may not be eliminated or abrogated by the legislature or by the electorate through the statutory initiative process."

But opponents had already been at work on Proposition 8, seeking to enshrine the marriage definition in the constitution, and the initiative was approved for the November 4 vote.

Proposition 8 supporters also announced the addition of Kenneth Starr to their legal team. Starr will serve as lead counsel and argue their case to the Supreme Court.

Starr, the dean of Pepperdine Law School, investigated the suicide of Clinton deputy White House counsel Vince Foster and the Whitewater affair. The $70 million investigation turned up evidence of President Clinton's affair with Monica Lewinsky and led to Clinton's impeachment by the House of Representatives. He was acquitted by the Senate

[jody]

46. “The people have a right to amend their constitution" but not to abolish an inalienable right.

From DU thread http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=221&topic_id=90074#90079

If same-sex marriage is an “inalienable right” under CA Constitution the constitution cannot be amended to take away that right.

CALIFORNIA CONSTITUTION

ARTICLE 1 DECLARATION OF RIGHTS
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.

IMO it's up to the California Supreme Court to rule on whether same-sex marriage is an inalienable right and the constitution cannot be amended to take away that right.

If it's legal to amend a constitution to take away an inalienable right, then the constitution can be amended to legalize slavery and that applies to the CA Constitution and the US Constitution.

In other words, the idea that an inalienable right protects a minority even of one against the tyranny of a simple majority would be destroyed.

[Jack Rabbit]

50. K/R

And then there are the heroes who battle the demagogues.

[sarcasmo]

51. When Moon Beam gets it, every person on this planet should, unless of course you are a Bigot.

[slackmaster]

55. He has some courage to take that position

He's putting his political career on the line.

[supernova]

56. Jerry has the right idea

And I hope he wins.