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California AG Brown files brief: Prop 8 is invalid
California AG Brown files brief: Prop 8 is invalid
by Rex Wockner - SGN Contributing Writer

In a stunning legal move, California Attorney General Jerry Brown formally urged the California Supreme Court to invalidate Proposition 8 on December 19 because, in re-banning same-sex couples from marrying, the voter-approved constitutional amendment deprived people of an aspect of liberty that the Supreme Court previously had concluded is guaranteed by the California Constitution.

Ordinarily, it is the attorney general's job to defend the state's laws, not attack them.

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

"There are certain rights that are not to be subject to popular votes, otherwise they are not fundamental rights," he added in an interview with the San Jose Mercury News. "If every fundamental liberty can be stripped away by a majority vote, then it's not a fundamental liberty."

Rejecting recent arguments submitted to the state Supreme Court by Gay-rights lawyers, Brown concluded that existing case-law precedents of the court do not invalidate Proposition 8 either as an improper revision of the state constitution or as a violation of the separation-of-powers doctrine. But that does not resolve the matter, he said.

In its May 15 decision legalizing same-sex marriage, the state Supreme Court "held that article I, section 1 of the California Constitution provides a right to marry that cannot be denied to same-sex couples," Brown's office said. "In order to invalidate such a fundamental right, the court must determine that there is a compelling justification to do so. But in [its decision], the court found that no such compelling justification exists. Accordingly, Proposition 8 must be stricken."

"The use of the [ballot] initiative power to take away a legal right deemed by this Court to be fundamental and from a group defined by a suspect classification is a matter of grave concern," Brown said in his brief to the court. "Proposition 8 should be invalidated as violating the inalienable right of liberty found in article I, section 1 of our Constitution."

In its May decision, the state Supreme Court struck down the state's opposite-sex definition of marriage as unconstitutional, citing a fundamental right to marry under the state constitution and the constitution's guarantee of equal protection under the law.

The court further determined - in a move that legal analysts said was unprecedented for a supreme court - that any discrimination based on sexual orientation is constitutionally subject to the strictest level of scrutiny by courts, which made it dramatically harder for any level of government in California to defend itself in any arena where Gays, Lesbians and Bisexuals are not treated the same as heterosexuals.

This was accomplished by the court's declaring sexual orientation to be, like race and religion, a so-called "suspect classification" - a categorization that forces any government in California that treats GLB people differently in any way to prove it has a specific compelling interest, rather than a mere rational basis, for doing so.

While Prop 8 wiped out the part of the court's decision that legalized same-sex marriage, it did not alter the more groundbreaking part of the ruling that found sexual orientation to be a "suspect classification."

Gay rights lawyers said back in May that the suspect-classification determination would prove to be even more of a game-changer for California Gays in the long run than was the decision to legalize same-sex marriage.

If Brown's argument passes muster with the state Supreme Court, that prediction will have been borne out.

Equality California Executive Director Geoff Kors praised Brown's court brief and its novel argument.

"He just demonstrated the kind of leadership that isn't motivated by political expediency but by what is right," said the head of the state's leading Gay lobby group.

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