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rights secured under the state Constitution’s safeguard of liberty as an ‘inalienable’ right may intentionally be withdrawn from a class of persons by an initiative amendment.”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