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
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."
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."
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.