Source: USA Today, San Francisco Chronicle, Los Angeles Times, BBC
Backers of Proposition 8 today asked the state's Supreme Court to void the marriages of the thousands of lesbian and gay couples who married there from June until November. Many Prop. 8 backers had claimed during and after the campaign that they weren't seeking to invalidate those marriages.
Supporters of marriage equality argued in their briefs that a the ban on such unions cannot be applied retroactively.
But a move as surprising as Prop. 8's attempt to void existing marriages, California Attorney General Jerry Brown asked the state's high court to strike down the amendment, arguing that the voter-passed ban on marriage equality is unconstitutional.
Brown, the state's chief law enforcer, said after the measure passed last month that he would defend it in court. But in his surprise filing this afternoon, Brown said Prop. 8 "deprives people of the right to marry, an aspect of liberty that the Supreme Court has concluded is guaranteed by the California Constitution", USA Today reports.
The court is reviewing lawsuits filed by gay and lesbian couples and by an array of local governments, led by San Francisco, that contend that the ballot measure exceeded the legal limits on initiatives by destroying fundamental rights and stripping judges of their authority to protect a historically persecuted minority, San Francisco Chronicle reports.
Such profound changes, the plaintiffs argue, amount to a constitutional revision -- not merely an amendment -- and require a two-thirds vote of the Legislature to reach the ballot.
Brown took a different tack in his brief. He agreed with Prop. 8 proponents that the ballot measure is not a constitutional revision and does not weaken judicial powers, according to San Francisco Chronicle.
But Brown said Prop. 8 conflicts with the Declaration of Rights, the basic guarantees of liberty declared in the first sentences of California's Constitution.
As the "chief law officer of the state," Brown said in the brief filed by his office, he is "duty bound to uphold the whole of the Constitution" and not merely the power of the people to change the laws by initiative.
Brown's brief opposing Prop. 8 was unexpected because the attorney general is legally bound to defend the state's laws and generally argues to support a ballot measure that passed from any challenges.
"Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification," Brown said in a written statement, according to CNN.
The authors of the state Constitution, he said, did not intend "to put a group's right to enjoy liberty to a popular vote."
"It's unfortunate that the attorney general would not do his duty to defend the will of the voters," said Andrew Pugno, General Counsel for ProtectMarriage.com, the group that ran the Prop. 8 campaign, and the Proposition 8 Legal Defense Fund.
In a press conference late this afternoon, Brown said that, although he's required to defend the state's law, he's also required to uphold the constitution.
The pro-Prop. 8 brief was filed by Kenneth Starr, the former Whitewater special prosecutor and now dean of Pepperdine University law school. He also led the inquiry into President Bill Clinton’s affair with Monica Lewinsky.
Starr argued that the court should preserve the people's lawmaking powers by upholding the initiative and invalidating 18,000 same-sex weddings performed before the election.
"Proposition 8's brevity is matched by its clarity," Starr wrote in his brief.
"There are no conditional clauses, exceptions, exemptions, or exclusions: 'Only marriage between a man and a woman is valid or recognized in California.'"
Starr's brief defends the ballot measure against opponents' legal challenges, including the argument that the ballot measure needed a vote from the legislature to be added to the state's ballot.
Because it did not trust Brown to mount a staunch defense of the proposition, the "Protect Marriage" group intervened in the case, hired Starr, and filed its own brief, Los Angeles Times reports.
Starr argued Friday that Prop. 8 is a relatively modest measure and not the type of far-reaching change that qualifies as a constitutional revision, San Francisco Chronicle reports.
"It simply reinstates the traditional definition of marriage without any impact on the foundational powers of government," he wrote. Starr argued that judges retain their power to interpret the law, and have never held a "mandate to protect minority rights or ensure equality apart from the law."
The justices could hear the cases as early as March and would be required to rule within 90 days. Other interested parties on both sides are scheduled to submit written arguments Jan. 15, according to the Chronicle.
"We are confident that the will of the voters and Proposition 8 will ultimately be upheld," said Prop. 8's Pugno.
Source: California attorney general asks state's top court to void gay-marriage ban | USA Today
Brown asks state high court to overturn Prop. 8 | San Francisco Chronicle
Kenneth Starr to defend gay marriage ban before state Supreme Court | Los Angeles Times
Group seeks to void gay marriages | BBC