California Attorney General Weighs in on Proposition 8

Not surprisingly, given that the office is occupied by former “Governor Moonbeam” Jerry Brown, he feels that the amendment barring same sex marriage should be invalidated.  Also not surprisingly, given that it’s Governor Moonbeam, he takes a novel approach to the argument, one that libertarians may like: that same sex marriage is an inalienable right which cannot be taken away even by constitutional amendment.  (The fighting Ninth Amendment to the United States Constitution does not appear to be cited, as it’s a matter of state law).

Kip Esquire, who is a libertarian and who strongly favors same sex marriage rights, has given Brown’s arguments a thorough review, and seems unimpressed.  Key criticism:

If I were Kenneth Starr (in the sense of, “if I were as insolent and snarky as Kenneth Starr is”), then I would simply respond with something like this: “What the Attorney General is apparently suggesting is that the California Constitution — is unconstitutional. That simply cannot be right.”

More analysis of the Brown brief may be found at Mr. Esquire’s site.


  • There is a god, his name is Gerry Brown. I’m sleeping soundly again. I hope the California Supreme Court destroys prop 8!

  • No, I suspect that if there were a God, at least one that conforms to the general description, there’d be no Gerry Brown and no CA Supreme Court. Maybe no 9th Circuit, either.

  • “Only one problem with novel theory – is stupid! Is stupidest theory I ever heard!”

  • Jerry Brown’s “cure” for Proposition 8 is worse than the disease.

    Jerry Brown’s argument, taken to its logical conclusion, would invalidate California’s death penalty and important state constitutional provisions put there by referendum.

    Brown argues that you can’t amend the state constitution to limit a fundamental right found in the state constitution.

    The liberal California Supreme Court of the 1970s claimed that the death penalty violated the fundamental rights contained in the state constitution.

    Voters overturned that decision by ballot initiative.

    The liberal California courts found a fundamental right to forced busing to prevent “de facto” (read: non-existent) segregation.

    Voters limited the reach of that decision by ballot initiative.

    Jerry Brown’s argument is a liberal social engineer’s dream — and a nightmare for not just social conservatives, but also moderates, libertarians, secular conservatives, and crime victims.

    I publicly opposed Proposition 8 in comments at Volokh Conspiracy (and earlier said that the California Supreme Court’s gay marriage ruling was plausible). But I hope Jerry Brown’s argument fails.

  • The gist of equal protection is that the majority can’t impose a rule on a minority unless it too is willing to live by the law. Prop 8 is unique, as far as I know, in violating this basic principle.

    The California constitution does say that some changes are beyond the power of initiatives, but it very unclear about what. Surely a majority of the moment taking a fundamental right away from only a suspect class must be beyond that power. It’s the most extreme thing imaginable, short of dissolving the government entirely or replacing the governor with a King.

  • Mr. King, I agree with your post. In my view, homosexuality is a suspect or at least a quasi-suspect classification. Homosexuality is an indelible, immutable trait, subject to classification like race, gender, and national origin. Therefore a law regarding the classification deserves a heightened degree of scrutiny because it is a classification enduring repeated discrimination by a majority driven, arguably, by animus. Marriage is just this sort of law. While divided courts have never extended this protection to the gay community the jurisprudential groundwork is obvious. But I think what your post misses is that homosexuality has never been recognized as a protected class in constitutional law, California or U.S. Supreme Court. That having been said I agree completely with your description of the essence of equal protection clauses in state/U.S. constitutional law.