The Attorney General and Proposition 8

The Sacramento Bee this morning lauded the courage of our Attorney General in the case to decide the constitutionality of Proposition 8. They said in part "Brown rightly notes that the Proposition 8 case poses a conflict between the constitution's Declaration of Rights (Article I, Section 1) and the power of the voters to amend the constitution (Article XVIII, Section 3)." It is pretty clear that Brown's new found position is more political than legal. The fight here revolves primarily around Article 1, the State Constitution's declaration of rights.

I voted against Proposition 8, because I do not believe that marriage should be in the state's declaration of rights. By declaring everything to be a right one risks vitiating the issues that clearly should be protected. But I also understand the other side's position.

On November 18, the Deputy Attorney General said "There is significant public interest in prompt resolution of the legality of Proposition 8. This court can provide certainty and finality in this matter." Brown had earlier promised to defend the "will of the people" on the initiative. Yet he has now backed away from that position and the Bee applauds that shift.

The Bee's support for Brown's position is based on two false premises. First, they seem to argue that Article 1 protects somehow a "right" to marriage. It is hard to find that in the Article. It states "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." Presumably the Bee is arguing that Proposition 8 somehow removes a "property" right. By adopting Proposition 8 the voters added a new Section 7.5 which defined marriage as only between a man and a woman. There was no withdrawal of property rights granted under statutorily established domestic partnerships. Section 31 declares in part "The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." Notice that the section does not include sexual orientation. In short Article 1, is a) much longer than the protections granted in the US Constitution and b) relatively clear about a potential conflict if the language of the constitution is construed to command same sex marriages.

There is a second hitch in Article 1 which the Bee ignores. Section 4 of the article declares "Free exercise and enjoyment of religion without discrimination or preference are guaranteed. " Many of the conservative religious denominations argue that scripture or theology prohibits same sex marriage. Could overturning the Proposition lead to restrictions on the rights of religious groups to practice their faith?

The Bee claims that there is a conflict between the declarations in Article I and Article XVIII which allows amendments. The latter article is short, as it relates to the voter's authority to amend. Section 3 says "The electors may amend the Constitution by initiative." Section 4 declares that the amendment becomes effective if "approved by a majority of votes thereon." To establish the Bee's logic one would have to argue that marriage is somehow covered in Article 1 or that the initiative did not receive a majority vote.

There are some substantive issues facing the court for which an attorney general who was doing his job and not looking for his next would would express some legal thoughts on. If he believes that the plain meaning of Section 1 is to include sexual orientation in the meaning of the protected categories then he should express that opinion, although that would be a bit hard to establish. If he believes that marriage is a property right and therefore a distinction based on sexual orientation is inappropriate then he could also express that opinion. But that too would be hard to establish. If he believes that the voters have established a constitutional issue based on the limits of Section 4, the religious expression question, then he should argue that.

But the real reason why Brown changed his tune is based on politics not law. In 1978, Brown was one of the most vigorous opponents of Proposition 13. Part of the movement toward that initiative was his willingness to hoard several billion dollars at the state level, to assure that he would not face the problem his father had on deficits. When the voters adopted Proposition 13, Brown turned on a dime and championed its' implementation. He was then, as he is now, pandering to a constituency. That is not good lawyering and it remains to be seen whether it is good politics.