The Revelation According to Jerry
Jerry Brown says the people be damned. The Attorney General of California is asking the California Supreme Court to invalidate the popular vote on Proposition 8.
Proposition 8 stated: Only marriage between a man and a woman is valid or recognized in California.
The Los Angeles Times reports:
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 Brown had a revelation, something that he says was not apparent to him immediately after the vote. Brown has now determined that the right of a person to marry someone of the same sex is a fundamental, inalienable right, and therefore one that cannot be abrogated by a ballot initiative.
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.
It’s hard to imagine how Brown missed this analysis until now. The analysis depends on the fallacious argument that same-sex marriage has always been a fundamental right. The argument finds its rationale in the notion that the California Constitution has always protected the right of an individual to marry someone of the same gender and that Proposition 8 actually changes the Constitution.
What has happened to Jerry Brown? He used to be a trailblazer, and now he is bringing up the rear. You see, the Supreme Court of California had this same epiphany last year, well before Brown. In fact, the whole point of Proposition 8 was to refute the Supreme Court’s fanciful interpretation of the Constitution and, indeed, of history:
The constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are 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. These core substantive rights include, most fundamentally, the opportunity of an individual to establish – with the person with which the individual has chosen to share his or her life – an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage. As past cases establish, the substantive rights of two adults who share a loving relationship to join together to establish an officially recognized family of their own – and, if the couple choose, to raise children within that family – constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitutes secures to all persons for the benefit of both the individual and society.
Now, one can certainly be justified in finding this opinion confusing and illogical, but it is hard to miss the court’s conclusion, right or wrong, that same-sex marriage is a fundamental right. If Brown read the opinion, he would know that this is what the court said. So why was this analysis “not evident” to Brown immediately after the vote on Proposition 8?
Answer: this analysis was always evident; it comprises the core of the legal debate. The only thing not evident to Brown on the morning after the election was which side to argue. Brown has now chosen. He chooses to make the argument that the Supreme Court has already embraced, the argument that he personally prefers, rather than the counter argument historically accepted and recently reiterated by a majority of the state’s voters.
Brown’s surprise turnabout seems calculated to leave the proponents of Proposition 8 unrepresented before the court. And people wonder why lawyers have a bad reputation.
More from Michele Malkin.
