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GAY PEOPLE'S CHRONICLE January 2, 2009 • www.GayPeoples Chronicle.com
Inalienable rights can't be voted away, says Brown California attorney general reverses stand on Proposition 8, arguing against it
by Lisa Leff
ASSOCIATED PRESS
San Francisco-California Attorney General Jerry Brown changed course on the state's new same-sex marriage ban on December 19 and urged the state Supreme Court to void Proposition 8.
In a dramatic reversal, Brown filed a legal brief saying the measure that amended the California Constitution to limit marriage to a man and a woman is itself unconstitutional because it deprives a minority group of an inalienable right. Earlier, Brown had said he would defend the ballot measure against legal challenges from gay marriage supporters.
But Brown said he reached a different conclusion "upon further reflection and a deeper probing into all the aspects of our Constitution.'
"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 that night. "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 percent vote." Brown's brief said that the constitution did not intend "to put a group's right to enjoy liberty to a popular vote."
Brown, who served as governor from 1975 to 1983, is considering seeking the office again in 2010. After California voters passed Proposition 8 on November 4, Brown said he personally voted against it but would fight to uphold it as the state's top lawyer.
The litigation over Proposition 8 is shaping up, Brown said, as a high-stakes conflict between the electorate's right to direct democracy and rights of minorities to equal
treatment.
Brown submitted his brief in one of the three legal challenges to Proposition 8 brought by same-sex marriage supporters. The measure, a constitutional amendment that passed with 52 percent of the vote, overruled the Supreme Court decision last spring that legalized same-sex marriage in the nation's most populous state.
Shannon Minter, legal director of the National Center for Lesbian Rights, called the attorney general's change of strategy "a major development."
"The fact that after looking at this he shifted his position and is really bucking convention by not defending Prop. 8 signals very clearly that this proposition can not be defended," Minter said.
Court asked to void 18,000 marriages
Meanwhile, the sponsors of Proposition
8 argued for the first time on December 19 that the court should undo the marriages of the estimated 18,000 same-sex couples who exchanged vows before voters passed the
measure.
The Yes on 8 campaign filed a brief telling the court that because the new law holds that only marriages between a man and a woman are recognized or valid in California, the state can no longer recognize the existing same-sex unions.
"Proposition 8's brevity is matched by its clarity There are no conditional clauses, exceptions, exemptions or exclusions," reads the brief co-written by Kenneth Starr, dean of Pepperdine University's law school and the former independent counsel who investigated President Bill Clinton.
During the campaign leading up to the general election, the Prop. 8 supporters said that they were not going to force divorce upon couples who had already married.
Both Brown and gay rights groups maintain that the gay marriage ban may not be applied retroactively.
The Supreme Court could hear arguments in the litigation as soon as March. The measure's backers announced December 19 that Starr, a former federal judge and U.S. solicitor general, had signed on as their lead counsel and would argue the cases.
The new brief provides a preview of how Proposition 8's supporters plan to defend
the measure. It asserts that the Supreme Court lacks the authority or historical precedent to throw out Proposition 8.
"For this court to rule otherwise would be to tear asunder a lavish body of jurisprudence," the court papers state. "That body of decisional law commands judges as servants of the people-to bow to the will of those whom they serve-even if the substantive result of what people have wrought in constitution-amending is deemed unenlightened."
Starr declined comment, but co-counsel Andrew Pugno said the brief was filed in response to a question the court's seven justices posed to lawyers on both sides, not as an attack on the married same-sex couples. "The people passed Prop. 8," he said. "We are defending that."
Jesse Choper, a constitutional law professor law at the University of California, Berkeley's Boalt School of Law, said Brown has to show that the rights of gays to marry or to be free from discrimination cannot be abridged under any circumstances.
"It is not an easy argument, but that doesn't mean it's not going to win," Choper said.
Another of the arguments made by samesex marriage supporters is that the changes made by Prop. 8 are so profound, they amount not to a constitutional amendment, but to a constitutional revision, which requires a two-thirds vote of the legislature before it can go to voters. ♡
66 nations condemn gay death laws, but not the U.S.
by Anthony Glassman
New York City-Sixty-six nations supported a United Nations resolution condemning homophobic human rights violations, but the United States was not one of them.
The non-binding measure was presented December 18 by France, with the support of the majority of the European Union.
It called for an end to laws against gay sex in 79 countries, some of which execute people who are convicted.
China, Russia and members of the Or-
ganizations of the Islamic Conference refused to support the statement, along with the United States.
According to the New York Times, the United Nations high commissioner for human rights, Navanethem Pillay, said that laws against gay people "are increasingly becoming recognized as anachronistic and as inconsistent both with international law and with traditional values of dignity, inclusion and respect for all."
An opposing statement was read rejecting the immutability of sexual orientation, and said that the measure would legalize pedophilia.
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The Organization of the Islamic Conference, an association of 56 Muslim countries, also tried to remove sexual orientation as one of the reasons for summary executions in a Swedish-sponsored formal resolution condemning such killings.
"The Bush administration is trying to come up with Christmas presents for the religious right so it will be remembered," said Scott Long, a director at the international agency Human Rights Watch.
The French secretary for human rights and the Dutch foreign minister expressed
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disappointment in the American position, which the government justified by saying that the measure was too broad and could be viewed as overriding states' rights on issues including same-sex marriage.
"We are opposed to any discrimination, legally or politically, but the nature of our federal system prevents us from undertaking commitments and engagements where federal authorities don't have jurisdiction," said deputy permanent U.S. representative Alejandro D. Wolff.
The Vatican also opposed the measure, and drew sharp criticism when its permanent observer to the United Nations told a French Catholic news agency that it would “add new categories of those protected from discrimination," according to Reuters.
"If adopted, they would create new and implacable discriminations," Archbishop Celestino Migliore said. "For example, states which do not recognize same-sex unions as 'matrimony' will be pilloried and made an object of pressure."
"Grotesque" was the adjective La Stampa, a mainstream Italian newspaper, used to describe the archbishop's reasoning.
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