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So, who would you rather have supporting your cause before the California Supreme Court, Dean Kenneth Starr or California Attorney General Jerry Brown? -especially when the cause is the legality of gay marriage.

Brown who had not practiced law for over a decade before he won an election as California Attorney General has postulated a weird legal theory (in his brief before the court) as to why the California Supreme Court should overturn the vote of the California people restoring the traditional definition of marriage (one man one one woman).

Jerry Brown’s brief is here.

Nonetheless, the attorney general’s brief surprised some legal scholars.

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.

He added that he expected the state Supreme Court to reject the argument. “I think it is much too radical for this court,” he said.

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.

“Whether or not it will carry the day,” he added, “I have no idea.”

Under Brown’s legal theory, Flap doubts the California Constitution could ever be amended.

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rights secured under the state Constitution’s safeguard of liberty as an ‘inalienable’ right may intentionally be withdrawn from a class of persons by an initiative amendment.”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.

Just call anyting an “inalienable” right and you can withdraw the people’s right to change the Constitution.

How stupid is this?

If the California Supreme Court rules in favor of this preposterous theory and overturns California Proposition 8 all of the members of the court will either be recalled or thrown ot of office at the next confirmation election.

The Yes on 8 campaign filed a brief telling the court that because the new law holds that only marriages between a man and a woman are recognized or valid in California, the state can no longer recognize the existing same-sex unions.

“Proposition 8’s brevity is matched by its clarity. There are no conditional clauses, exceptions, exemptions or exclusions,” reads the brief co-written by Kenneth Starr, dean of Pepperdine University’s law school and the former independent counsel who investigated President Bill Clinton.

Stay tuned as reply briefs are filed with the court by January 5th.

Exit answer: Kenneth Starr

Power Line makes the obvious observation as to the consequences of the California Supreme Court overruling a vote of the people on California Propsition 8 that restored the traditional definition of marriage (one man and one woman).

The votes by which the people of California passed Proposition 8, restricting the definition of marriage to a union between a man and a woman, had barely been counted when the ACLU filed a lawsuit. That suit, filed directly with the California Supreme Court, claimed that Prop. 8 would change the California Constitution in so fundamental a way — i.e., taking important rights away from a minority group — that it amounts to a constitutional revision. As such, the theory goes, the legislature was required to pass it before submitting the matter to the voters.

This kind of argument seems like meat and drink for California’s liberal Supreme Court. But my friend Craig Harrison tells me that if that court once again tells the voters “to go to hell,” he expects recall petitions to be circulated for the judges in question. This is permitted under the California Constitution if signatures can be obtained from 20% of the number of people who voted in the last election. Given the 2008 turnout, it might make sense to submit the petition following the primaries that will occur next year.

The petition would not just pertain to the merits of Prop 8, but also to the fact that the state’s judges will have thumbed their noses at the popular will. Perhaps those judges will consider this risk when they take up the matter.

Paul and John don’t quite have the timing correct as ANY election would be in June 2010 and there are no primary elections scheduled next year in California.

However, Flap does not think the California Supreme Court will throw out the California voters’ wishes. We received an indication of this the other day by Justice Kennard’s actions.

There is no sense in talking about a recall election of the court unless they go off the deep end again.

But, recalled all they would be in 2010.

Previous:

OUTED: A California Democrat Assemblywoman Who SUPPORTED Proposition 8 - Wilmer Amina Carter

California Gay Marriage Proponents Organize Boycott Against San Diego Storage Company Over Proposition 8 Donations

Does California Supreme Court Justice Joyce Kennard’s Vote Yesterday a Good Sign for Proposition 8?

Poll: 3 of 5 in California Say Gay Marriages Before Proposition 8 Should Remain Legal?

In yesterday’s post about the California Supreme Court accepting California’s Proposition 8 that restored the traditional definition of marriage (one man and one woman) to the California Constitution for review, Flap briefly mentioned the fact that Justice Kennard did NOT sign the order.

From the order:

Justice Kennard would deny these petitions without prejudice to the filing in this court of an appropriate action to determine Proposition 8’s effect, if any, on the marriages of same-sex couples performed before Proposition 8’s adoption.

Justice Kennard, in fact, voted against reviewing the constitutionality of Proposition 8.

Why?

While both sides cheered the court’s decision to take up the cases, Kennard’s lone vote to deny review could spell trouble for opponents of Prop. 8.

Kennard is the court’s longest-serving justice, having been appointed in 1989, and has been one of its foremost supporters of same-sex couples’ rights. Without her vote, the May 15 ruling would have gone the other way. But she wrote Wednesday that she would favor hearing arguments only about whether Prop. 8 would invalidate the pre-election marriages, an issue that would arise only if the initiative were upheld.

“It’s always hard to read tea leaves, but I think Justice Kennard is saying that she thinks the constitutionality of Prop. 8 is so clear that it doesn’t warrant review,” said Stephen Barnett, a retired UC Berkeley law professor and longtime observer of the court.

For those seeking to overturn Prop. 8, “I would not think it would be encouraging,” said Dennis Maio, a San Francisco lawyer and former staff attorney at the court.

Flap thinks the court ultimately will support California’s voters and uphold the constitutionality of Proposition 8. Flap predicts a 6-1 vote with Justice Moreno dissenting.

Justice Kennard has sent a message to her fellow Justices yesterday that she plans to uphold Prop. 8.

Or did she?

Stay tuned……

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And, the proponents are confident that Proposition 8 wll be upheld.

The official proponents of Proposition 8 and ProtectMarriage.com – Yes on 8, the campaign committee responsible for its enactment by voters today said it is “profoundly gratified” that the California Supreme Court granted all their requests by agreeing to accept original jurisdiction of three cases challenging the measure’s validity,  granted their request to intervene in the cases as Real Parties in Interest, denied the request of others to delay implementation of Proposition 8, and refused to allow outside groups to directly participate in the litigation.

Flap can count as well.  Three California Supreme Court Justices that opposed gay marriage plus Justice Kennard (who refused to sign the order and voted to deny the petitions) equals four votes upholding the Proposition and the traditional definition of marriage.

Flap bets the final vote will be 6-1 with Moreno dissenting to uphold Proposition 8 simply because a MORON would have to rule this is a revision of the Constitution and not an amendment.

Stay tuned as the briefs are prepared.

The California Supreme Court agreed to decide today the legality of California’s Proposition 8 that restored the traditional definition of marriage (one man and one woman) to the California Constitution.

At the urging of both sponsors and opponents of Proposition 8, the justices granted review of lawsuits challenging the Nov. 4 initiative. Approved by 52 percent of the voters, Prop. 8 restored the definition of marriage - a union of a man and a woman - that the court had overturned May 15.

In today’s order, the justices let Prop. 8 remain in effect, denying a stay that would have allowed county clerks to resume issuing marriage licenses to same-sex couples until the case was decided. No hearing has been scheduled.

But, a stay was DENIED, meaning gay marriage in California remains banned.

The order is here. (Pdf)

In other items of interest in the order:

• The motions to intervene in the cases by Proposition 8 Official Proponents et. al. are GRANTED.

• Briefs are due on or before December 19, 2008. Replies by January 5, 2009.

• The issues to be argued and briefed:

1. Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to the California Constitution? (see Cal. Const.,art.XVIII, §§ 1-4.)
2. Does Proposition 8 violate the separation of powers doctrine under the California Constitution?
3. If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

• Amicus curiae brief application and brief are due on or before January 15, 2009. Reply to amicus curae brief is due January 21, 2009.

• Justice Moreno joins the order but voted to stay proposition 8.

• Justice Kennard would deny these petitions without prejudice to the filing in this court of an appropriate action to determine Proposition 8’s effect, if any, on the marriages of same-sex couples performed before Proposition 8’s adoption.

California Supreme Court Justices, from top left, Kathryn Mickle Werdegar, Carlos R. Moreno, Joyce L. Kennard, Marvin Baxter and from lower left, Ming Chin, Chief Justice Ronald M. George and Carol Corrigan

The California Supreme Court legal challenge to Proposition 8

The links:

S168047
KAREN L. STRAUSS, et al., Petitioners v. MARK B. HORTON, et al.

• Immediate Stay Request
• Petitioner’s Exhibits
• Petitioner’s Motion for Judicial Notice
• Amended Petition
• Motion to Intervene
• Motion to Intervene by Official Proponents
• Official Proponents Opposition to Motion by Campaign
• Petitioners’ Opposition to Motion to Intervene
• Request for Judicial Notice
• Preliminary Opposition
• Preliminary Response from the Attorney General
• Letters submitted in support of petition:
  The Bar Association of San Francisco et al.
  Forty-Four Members of the State Legislature
  Anti-Defamation League et al.
  Beverly Hills Bar Association et al.
  Los Angeles County Bar Association
  Sacramento Lawyers for Equality of Gays and Lesbians et al.
  Manning & Marder, Kass, Ellrod, Ramirez
  Constitutional Law Center (Monterey College of Law)
  Hastings College of the Law
  Lieff, Cabraser, Heimann & Bernstein
  Richards, Watson, & Gershon
  The Ecumenical Catholic Church
  Donna M. Ryu (Hastings College of the Law)
• Letters requesting denial of petition and request for stay:
  The Pacific Justice Institute
  Center for Constitutional Jurisprudence (Chapman University Law)
  Steven Meiers
  Kingdom of Heaven
  American Center for Law and Justice

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S168066
ROBIN TYLER, et al., Petitioners v. STATE OF CALIFORNIA, et al.

• Immediate Stay Request
• Amended Petition
• Motion to Intervene
• Motion to Intervene by Official Proponents
• Official Proponents Opposition to Motion by Campaign
• Preliminary Opposition
• Preliminary Response from the Attorney General
• Debra Bowen’s Preliminary Response
• Letter from counsel for petitioners in response to letter submitted by Pacific Justice League
• Letters submitted in support of petition:
  Beverly Hills Bar Association et al.
  Los Angeles County Bar Association
  Sacramento Lawyers for Equality of Gays and Lesbians et al.
  Manning & Marder, Kass, Ellrod, Ramirez
  Constitutional Law Center (Monterey College of Law)
• Letters requesting denial of petition and request for stay:
  The Pacific Justice Institute
  Center for Constitutional Jurisprudence (Chapman University Law)
  American Center for Law and Justice

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S168078
CITY AND COUNTY OF SAN FRANCISCO et al. Petitioners v. MARK B. HORTON, et al.

• Petition for Writ of Mandate
• Amended Petition
• Motion to Intervene
• Motion to Intervene by Official Proponents
• Official Proponents Opposition to Motion by Campaign
• Judicial Notice
• Preliminary Opposition
• Preliminary Response from the Attorney General
• Letters submitted in support of petition:
  Beverly Hills Bar Association et al.
  Los Angeles County Bar Association
  Sacramento Lawyers for Equality of Gays and Lesbians et al.
  Manning & Marder, Kass, Ellrod, Ramirez
  Constitutional Law Center (Monterey College of Law)
• Letters requesting denial of petition and request for stay:
  The Pacific Justice Institute
  Center for Constitutional Jurisprudence (Chapman University Law)
  American Center for Law and Justice

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S168281
ASIAN PACIFIC AMERICAN LEGAL CENTER, et al., Petitioners v. MARK B. HORTON, et al.

• Petition for Writ of Mandate
• Motion to Appear as Counsel Pro Hac Vice
• Motion by Campaign to Intervene
• Letter submitted in support of petition:
  Sacramento Lawyers for Equality of Gays and Lesbians et al.

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S168302
EQUAL RIGHTS ADVOCATES AND CALIFORNIA WOMEN’S LAW CENTER, Petitioners v. MARK B. HORTON, et al.

• Petition for Writ of Mandate
• Motion for Judicial Notice in Support of Petition

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S168332
CALIFORNIA COUNCIL OF CHURCHES, et al., Petitioners v. MARK B. HORTON, et al.

• Petition for Writ of Mandate

Flap will update as the cases proceed.