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December 23, 2008, 4:00 a.m.
Gross Dereliction of Duty
By the Editors
As attorney general of California, Jerry Brown has a duty to defend the state and its laws in court. That duty requires him to offer the best grounds in defense of any law that may reasonably be defended. In a brief he filed last Friday in the case challenging Proposition 8 — the ballot measure that amended California’s constitution to ban same-sex marriage — Brown grossly violated that duty.
On Election Day, California voters approved Proposition 8. Opponents of Proposition 8 then rushed to court to invalidate it on the novel theory that it was a “revision” to, rather than an “amendment” of, the state constitution, and that this “revision” could not be accomplished through the ballot-initiative process.
The brief that Brown filed for the state last Friday properly rejects the claim that Proposition 8 amounts to a revision rather than an amendment. But instead of presenting the best grounds in defense of the legality of Proposition 8, Brown’s brief offers the crackpot theory — beyond anything the opponents of Proposition 8 have argued, and beyond the scope of the briefing that the supreme court invited — that the constitutional amendment achieved by Proposition 8 is itself unconstitutional.
Here is how Brown summarizes his argument in his press release: “The amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification.” Brown invents this argument out of whole cloth: Further, how is it that a “right” to same-sex marriage that the state supreme court invented just months ago, and that even Brown’s brief concedes was not something “the Framers [of the state constitution] contemplated,” should suddenly be deemed a “fundamental” constitutional right?
Brown’s answer is judicial activism on stilts: Any right that the state supreme court has found to be protected as (in Brown’s phrase) “part of fundamental human liberty” under the state constitution is ipso facto a “fundamental” right. And, further, the fact that the court found such a right means there is no “compelling justification” for its abrogation. In Brown’s theory, there is no popular check on the judicial-activist invention of rights.
This is not the first time Brown has indulged his policy preference for same-sex marriage. In the marriage case that led to the supreme court’s creation of a right to same-sex marriage, Brown expressly repudiated the procreation-based argument for traditional marriage that had prevailed in some liberal courts. And he changed the ballot title for Proposition 8 from “Limit on Marriage. Constitutional Amendment” to “Eliminates Right of Same-Sex Couples to Marry Initiative. Constitutional Amendment” — a move seemingly intended to cost the initiative votes.
Brown’s brief is both a violation of his duty and professional malpractice. It’s good to see that some liberal law professors in California have already criticized Brown: One says that Brown’s argument “turns constitutional law on its head,” and another calls his position “extraordinary.” But Brown’s betrayal of the public trust deserves broader condemnation from political and legal leaders in California, including governor Arnold Schwarzenegger, irrespective of their own positions on marriage. |
