A new twist in the Prop 8 litigation
Filed by: Nan Hunter
December 21, 2008 7:00 PM
http://www.bilerico.com/2008/12/a_new_twist_in_the_prop_8_litigation.php (http://www.bilerico.com/2008/12/a_new_twist_in_the_prop_8_litigation.php)
CA Attorney General Jerry Brown surprised all sides in the Prop 8 litigation by filing a 90-page brief in the state supreme court that takes a unique position in the case, not agreeing completely with either side. In general, a state attorney general is expected to defend the validity of all state laws, regardless of whether s/he believes they are proper, unless exceptional circumstances dictate otherwise. Brown argued that Prop 8 should be invalidated by the court, but on a natural rights ground that no one else has argued, for which there is no direct precedent.
Opponents of Prop 8 sought to have it rescinded by invoking a murky distinction in CA law between amendments to the constitution, which voters can adopt, and more fundamental revisions to the constitution, which require a longer, more cumbersome process. Led by NCLR lawyers, the challengers argued that Prop 8 made "far-reaching changes to the nature of [the state's] governmental plan" and was such a fundamental abrogation of a minority group's constitutional rights that it amounted to an evisceration of judicial authority. For that reason, they argued, it was a revision, not an amendment, to the state constitution.