Flap's Blog

California Proposition 8 supporters yesterday filed legal briefs in the ongoing battle in the California Supreme Court over the constitutionality of California Proposition 8 that restored the traditional definition of marriage (one man and one woman) by California Constitutional Amendment last November.

Gay-marriage opponents filed legal briefs Monday accusing California Atty. Gen. Jerry Brown of having “invented an entirely new theory,” one that “fails at every level,” in his quest to find a reason to invalidate Proposition 8, which passed with 52% of the vote in November.

“The people have the final word on what the California Constitution says,” lawyers for the Protect Marriage Coalition wrote. “The practical result of the attorney general’s theory is that the people can never amend the Constitution to overrule judicial interpretations of inalienable rights.”

The filing, which was co-written by Whitewater prosecutor and Pepperdine Law School Dean Kenneth Starr, came in response to a brief filed two weeks ago by the attorney general in which Brown surprised legal experts with a novel theory to argue that Proposition 8 should be invalidated.

Brown’s theory, Starr wrote, is “utterly without foundation in this court’s case law” and “is not only unprecedented but contradicts the most basic understanding of the role of the judiciary in a constitutional democracy.”

The attorney general has a legal duty to uphold state laws, and Brown, though he personally supports same-sex marriage, had pledged to defend Proposition 8 after gay-rights activists and California cities filed lawsuits challenging it the day after the election.

But in a move that outraged supporters of Proposition 8 and took even gay-rights activists by surprise, Brown’s brief instead urged the court to toss the proposition, declaring that “the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification.” Brown argued that the California Constitution protects the right to marry as inalienable.

Legal experts said Starr and the Protect Marriage coalition had made a strong counter-argument in their filing Monday.

Santa Clara University Law professor Gerald Uelmen, an expert on the state high court, said it “hits the nail on the head.”

“If you think of the Constitution as a compact between the people and those who govern us, to say the people have no power to amend a court’s ruling simply because the court . . . says this is an inalienable right — I think that is pretty far out.”

All of the legal filings before the California Supreme Court are here.

The Protect Marriage Coalition legal brief in response to California Attorney General Jerry Brown’s brief is here (PDF).

The California Supreme Court will likely hear oral arguments in March and render a ruling sometime this late spring or early summer.

Stay tuned…….

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Jerry Brown, Kenneth Starr and California Proposition 8

Technorati Tags: Jerry Brown, Kenneth Starr, Gay Marriage, California Proposition 8

Kenneth W. Starr, the former U.S. Solicitor General and Pepperdine School of Law Dean who led the inquiry into President Bill Clintonâ€™s affair with Monica L. Lewinsky, will argue the case in favor of upholding a ban on gay marriage before the California Supreme Court

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

Technorati Tags: California Proposition 8, Jerry Brown, Kenneth Starr, California Supreme Court