Calif. AG: Gay Marriage Constitutional Amendment is Unconstitutional
In an about-face, California Attorney General Jerry Brown is asking the state supreme court to overturn a voter-approved constitutional amendment that bans gay marriage in the state.
Brown argues that “the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification,” the Los Angeles Times reports. He says the right to marry is an “inalienable right” under the state Constitution’s protections for liberty and privacy, and a majority vote cannot override such rights.
Brown argued that the authors of the state Constitution did not intend “to put a group’s right to enjoy liberty to a popular vote,” the San Francisco Chronicle reports.
The newspapers say the move surprised legal experts. Brown had previously vowed to defend the constitutional amendment known as Proposition 8, and he is legally obligated to uphold the state’s laws if he has reasonable grounds to do so, the LA Times story says.
Other petitions challenging the gay marriage ban use a different argument. They say the issue is whether the change is a simple amendment to the state Constitution that can be approved by a simple majority of the voters or a far-reaching revision requiring either a two-thirds vote of the legislature or a constitutional convention. They argue that the change is far-reaching and it cannot be enacted by a simple majority of the voters.
Former Whitewater special prosecutor Kenneth Starr is defending the gay marriage ban, enacted after the California Supreme Court found a state constitutional right for gays to marry, according to the Los Angeles Times and the other stories. Starr is dean of Pepperdine law school and a former member of the ABA Journal Board of Editors.
