Same Fight, Different Approach
BY Julie Bolcer
January 13 2009 1:00 AM ET
When millions of
Californians voted on Proposition 8 in November, they
were not asked to explain their choice to support or oppose
the initiative to ban same-sex marriage. But for three
lawsuits pending against Prop. 8 in the state supreme
court, reasons are of vital importance, especially in
a venue where numerous arguments compete with each
“It’s not at all uncommon in a case of this
constitutional magnitude that you’ll have many
different briefs with many different reasons,” says
Joel Paul, professor of law at the University of
California Hastings College of the Law. “Each
of these different theories might appeal to different
people on the court, and hopefully someone will be able to
put together a majority.”
expedited briefing schedule established by the court, Atty.
Gen. Jerry Brown raised eyebrows when he filed a brief on
December 19 that declared marriage rights to be
“inalienable.” As the state’s chief
law enforcement officer, he had announced earlier that he
would defend Prop. 8 against challenges, although he
personally opposed the initiative.
However, in the
surprise statement that accompanied his 111-page brief,
Brown said, “Proposition 8 must be invalidated
because the amendment process cannot be used to
extinguish fundamental constitutional rights without
He argued that
marriage was such a right, as the high court held in its
May decision, and therefore Prop. 8 was a denial of the
basic liberty guaranteed in the state constitution.
Brown also urged that marriages entered into between
June 16 and November 4 remain valid, regardless of the
fate of Prop. 8.
“It’s kind of a natural law argument,”
says Jerry Uelmen, a professor at Santa Clara
University School of Law who follows the California supreme
court. “He’s saying that the right to marry
finds its basis beyond the constitution.”
While Prop. 8
opponents agree with this part of his argument, they
diverge with Brown on another key point, specifically, his
belief that Prop. 8 is an amendment to the state
constitution and not a revision targeting gays and
lesbians, a suspect class of people.
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