Jerry Brown asks California Supreme Court to void gay-marriage ban

Well here we go again….we just can’t have the people of a state voting for what they want, democracy” that means majority rules, that is unless it’s not polictically correct I guess. Then it’s ok for the minority to invoke it’s wishes on the masses whether they like it or not. What’s next polygamy legalized or marrying you pet? Everytime this topic rears it’s ugly head I think of John Adams words which are so true even today  approximately 200 years later,

““Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

. Jerry Brown (as a proxy) has to have someone else’s (a minority) wishes cramed down the majority’s throat.  The Supreme Court cannot rule against the people’s vote and wishes. At least they’re not supposed to, but in this day of lawlessness while touting the “rule of law” who knows what might happen. 

Jerry Brown asks California Supreme Court to void gay-marriage ban

The state attorney general, who had earlier vowed to defend Prop. 8, offers a novel legal theory for why it should be overturned. The action surprises some legal experts.

By Jessica Garrison and Maura Dolan
December 20, 2008

Reporting from San Francisco and Los Angeles — California Atty. Gen. Jerry Brown asked the state Supreme Court on Friday to invalidate the voter-approved ban on gay marriage, declaring that “the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification.”

Brown’s argument on Proposition 8, contained in an 111-page brief filed at the last possible moment before the court’s deadline, surprised many legal experts. The attorney general has a legal duty to uphold the state’s laws as long as there are reasonable grounds to do so. Last month, Brown said he planned to “defend the proposition as enacted by the people of California.”

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.

Opponents of gay marriage, who also filed arguments with the court Friday, offered a sharply differing view of the case.

The brief, filed by the Protect Marriage coalition, told the justices that they should uphold the proposition, which voters approved 52% to 48% on Nov. 4 after one of the most expensive and emotional campaigns in state history.

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,” they argued.

In an interview, Andy Pugno, the lawyer for Protect Marriage, called Brown’s argument “an astonishing theory.” He added that he was “disappointed to see the attorney general fail to defend the will of the voters as the law instructs him to.”

The Supreme Court justices have indicated they will hear arguments in the case as early as March, with a ruling expected later in the spring. Kenneth W. Starr, the former Whitewater prosecutor and U.S. solicitor general, plans to argue on behalf of Protect Marriage, the group said Friday.

Some opponents of gay marriage have said that if the court strikes down Proposition 8, they expect to see an effort to recall justices who vote against the measure.

The issue could also have an impact on Brown’s political future. The attorney general, a former governor, has been exploring a run to return to that job in 2010. (I might add which explains his reversal on his defending prop.8)

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