Saturday, December 20, 2008

California's Rush To Judgment On Same Sex Marriage

Prop. 8 Backers Want 18,000 Marriages Nullified

Only in California can the bizarre become the norm.

In a spate of a few hours Friday afternoon, briefs were filed with the state Supreme Court challenging, supporting and extending a ban on same sex marriages.

Backers of Proposition 8, the initiative that bans same sex marriage, petitioned to nullify the 18,000 marriages conducted after the high court voted 4-3 approving such nuptials.

State Attorney General Jerry Brown countered with a brief indicating he could not support the proposition because "the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification." Brown's argument represents a curious legal theory as well as a reversal when he announced after the Nov. 4 election he would defend the law. Prop. 8 passed by a 52-48 margin. But in his filing, Brown, who personally supports same-sex marriage, said the California Constitution protects certain rights as "inalienable." Those include a right to liberty and to privacy, which the courts have said includes a person's right to marry. 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rights secured under the state Constitution's safeguard of liberty as an 'inalienable' right may intentionally be withdrawn from a class of persons by an initiative amendment." To take away an "inalienable" right would establish a "tyranny of the majority," which the Constitution was designed, in part, to prevent, he wrote.

Judges Must Bow To Will Of The People
Opponents of gay marriage offered a sharply differing view of the case.

The brief, filed by the Protect Marriage coalition, told the justices the 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 the people have wrought in constitution-amending is deemed unenlightened."

The two briefs also disagreed about the fate of the estimated 18,000 same-sex marriages performed before the election. Brown argued that Proposition 8 was not written to be retroactive and that the marriages should remain valid. Protect Marriage argued that no same-sex marriages should any longer be recognized.

The Supreme Court justices have indicated they will hear arguments in the case as early as March.

In a landmark ruling in May, the court ruled that the guarantee of equal protection in the state Constitution required that same-sex marriage be treated the same as heterosexual marriage.
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.

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. The chief law enforcement officer of the state is charged with enforcing laws, even laws with which he disagrees," Liu said.

Brown, who served two terms as governor in the 1970s, is exploring running for the office in 2010. His sometimes quirky view of the state earned him the nickname of Gov. Moonbeam.
(Sources: The Associated Press, Los Angeles Times)

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