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Brown’s Argument to Void Prop. 8 Under Attack

Brown’s Argument to Void Prop. 8 Under Attack


Kenneth Starr and gay-marriage opponents countered Jerry Brown's brief to void Prop. 8 Monday.

Same-sex marriage opponents filed legal briefs Monday suggesting California attorney general Jerry Brown "invented an entirely new theory," one that "fails at every level," in his attempt to invalidate Prop. 8, which banned same-sex marriage in the state when it passed at the polls 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."

Whitewater prosecutor and Pepperdine Law School dean Kenneth Starr cowrote the filing in response to a brief filed two weeks ago by Brown.

In his brief the attorney general said Prop. 8 is in and of itself unconstitutional because it "deprives a minority group of a fundamental right."

"It became evident that the Article 1 provision guaranteeing basic liberty, which includes the right to marry, took precedence over the initiative," he said in an interview shortly after filing the brief. "Based on my duty to defend the law and the entire constitution, I concluded the court should protect the right to marry even in the face of the 52% vote."

Starr argues that Brown's theory 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."

Brown's promise to fight to overturn Prop. 8 came as something of a shock. Though Brown has said he is personally supportive of same-sex marriage, his job as attorney general is to uphold state law.

Prior to filing the brief, he had pledged to defend Prop. 8 after gay rights activists and California cities filed suits challenging it the day after the election. (

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