Sunday, December 21, 2008

Understanding Jerry Brown

I'm not an attorney, nor am I an expert in constitutional law. Nevertheless, I'm going to take a stab at explaining California Attorney General Jerry Brown's Answer Brief in the Proposition 8 cases. The brief filed by Jerry Brown can be seen here, and was filed as the State of California's official response to the California Supreme Court's acceptance of multiple cases regarding the legality/constitutionality of Proposition 8.

The following is my understanding of the questions to be resolved in the Prop 8 cases:

1) Is Prop 8 a revision to the CA Constitution which should have gone through the Legislature or an amendment which was properly entered into via the initiative process? Depending on the answer, Prop 8 was either legally or illegally placed on the ballot.
2) Does Prop 8 violate separation of powers, specifically, has the court's power to judicially review legislation been unconstitutionally overridden by Prop 8?
3) If Prop 8 is constitutional, what is the status of the marriages that took place between June & November?

Summarizing 80 pages of legal arguments very briefly, J Brown notes:

A) In response to question 1, Prop 8 is not a revision to the CA Constitution, because Prop 8 was so narrowly focused on one issue.
B) In further response to question 1, Prop 8 is an amendment, therefore the election process was properly passed via the initiative process.
C) In response to question 2, Prop 8 does not violate the separation of powers, in that the court has previously allowed other amendments to override court decisions. One example of such an override was voter approved initiative amendment which re-authorized the death penalty in California, following the CA Supreme Court's tossing out of all death sentences as unconstitutional back in the 1970's.
D) In response to question 3, if Prop 8 is unconstitutional, marriages that took place prior to November should remain legal, because Prop 8 fails on the following points:
  1. Amendments are by precedent forward looking, with no effect on legal actions prior to the passage of the amendment--unless there is language making the amendment retroactive included in the amendment
  2. There was no clear retroactivity language included in Proposition 8
My understanding is that Brown is in agreement with the Prop 8 supporters on issues A, B & C, and in disagreement on issue D.

None of the above is really the important part of Jerry Brown's brief. Here's where it gets interesting.

Brown goes on to state that, as Attorney General, he finds that Prop 8 should be held invalid, but not for any of the reasons noted above. He finds that the CA Constitution has been interpreted to by the Supreme Court to hold marriage to be a fundamental right. Specifically, he addresses Article 1, Section 1 of the CA Constitution:

SECTION 1. 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.

Over the course of the latter portion of the Answer Brief, Jerry Brown defines marriage as a fundamental liberty right, one of the most basic rights enshrined in the California Constitution. If I'm understanding his argument correctly, Jerry Brown is making the point that while fundamental rights can be limited via judicial decision, legislation or constitutional amendment they can not be denied without a compelling state interest, especially in the case of a minority or suspect class. In legal parlance, a suspect class is one that must be treated carefully by the law, so that the law doesn't discriminate against that class of people. As part of the In re Marriage Cases decision, gays and lesbians were determined by the Supreme Court to be a suspect class, based on the historic animus and discrimination experienced by them.

Brown makes a further argument that there are limits to the initiative process in that "...If the initiative process were to encompass the unlimited power to abrogate fundamental rights, article 1, section 1 would be stripped of all meaning." By this, if I'm understanding correctly, Brown is stating that a constitutional initiative amendment must pass muster in light of other provisions of the State constitution for that amendment to be considered valid.

Brown goes on to say: "The Court should give expression to the guarantees secured by article 1, section 1 by evaluation whether the proposed initiative-amendment sufficiently furthers the public health, safety or welfare. Mere majority support alone does not suffice." In other words: the state has to have a damned good reason to remove a right from a class of people (i.e. a "compelling interest"). More importantly, he's saying that a majority vote is not sufficient reason to remove a right.

Both quotes are from page 89 of the brief (which is page 105 of the linked file.)

Brown concludes with:

"The use of the initiative power to take a way a legal right deemed by this court to be fundamental and from a group defined by a suspect classification is a matter of grave concern. Existing precedents of this court do not support the invalidation of Proposition 8 either as a revision or as a violation of the separation of powers. However, Proposition 8 should be invalidated as violating the inalienable right of liberty found in article I, section 1 of our Constitution.

Alternatively, if the Court finds the initiative constitutional, it should be narrowly construed to uphold the marriages that took place prior to the enactment of the initiative."
(from pages 91-92 of the brief, pages 107/108 in the link.)

In other words, Proposition 8 is, in Jerry Brown's opinion, a fatally flawed amendment that should be tossed out by the California Supreme Court. Failing that, the marriages that took place between June & November 2008 should remain legal.

If I'm following correctly, the logic above is built on
Jerry Brown's belief that under the CA Constitution, marriage, like religion or speech, is an inalienable right. As such, it can't be limited without a compelling state interest.

It's that simple. It's not "creating" a right, it's clarifying the status of an existing right.

From the CA Constitution:

SECT. 7 (b) A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens. Privileges or immunities granted by the Legislature may be altered or revoked.

That's how the relevant section of the CA Constitution read prior to the passage of Proposition 8. Remember, Jerry Brown is speaking to the fundamental right to marry as being enshrined in the CA Constitution. Section 7 is the section that was amended by Prop. 8, as follows:

SEC. 7.5. Only marriage between a man and a woman is valid or recognized in California.

There is no Section 7.1/2/3 or 4. Section 7(a) speaks primarily to how the school system is to be run in a non-discriminatory way. Read 7(b) again, and you'll see that 7.5 is in direct contradiction to it--because it separates marriage from the provisions of section 7(b). Setting aside Section 7.5 for the moment, Jerry Brown asks the court to consider the following:
SEC 3.
(2) A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access. A statute, court rule, or other Authority adopted after the effective date of this subdivision that limits the right of access shall be adopted with findings demonstrating the Interest protected by the limitation and the need for protecting that interest.
(3) Nothing in this subdivision supersedes or modifies the right of privacy guaranteed by Section 1 or affects the construction of any statute, court rule, or other authority to the extent that it protects that right to privacy, including any statutory procedures governing discovery or disclosure of information concerning the official performance or professional qualifications of a peace officer.
(4) Nothing in this subdivision supersedes or modifies any provision of this Constitution, including the guarantees that a person may not be deprived of life, liberty, or property without due process of law, or denied equal protection of the laws, as provided in Section 7.

California's Constitution Secs. 3.2 & 3.4 call for broadly interpreted equal protection/access to all legal institutions for all residents; which is in turn specifically called out as being equally applicable to all classes of people. Section 3.3 is relevant in that it's one of the sections of the Constitution that allows for private, consensual relationships between same-sex couples. These Sections, in combination with Section 7(b), direct that the State must show an "Interest" if either the addition or removal of equal protection/equal access is to be allowed. The State's "Interest" in adding equal access has been demonstrated by the Legislative and the Executive branches, by the passage of various pieces of DPR legislation over the last several years, which expanded most of the significant rights found in marriage to same-sex couples. Thus, all of the constitutional underpinnings for the In re Marriage Cases decision already existed prior to the passage of Prop 22. They weren't created out of whole cloth. The Court, as a result, held that Proposition 22, by separating Domestic Partnerships and Marriages in to two separate entities, violated Section 7 and failed sections 3.2 & 3.4.

Under J. Brown's logic, Prop 8 (i.e. Section 7.5), also flat out contradicts the provisions of Secs. 3.2, 3.4 & 7(b). When these sections are considered in combination with Article 1, Section 1, it becomes obvious that Section 7.5 should be tossed.

What's really cool is that Jerry Brown is saying that, while the supporters of Prop 8 followed all the correct steps in placing Prop 8 on the ballot and that Prop 8 doesn't unconstitutionally restrict judicial review of laws, Prop 8 still sucks.

At least that's my humble opinion. The language is pretty straight forward: no denial of equal access/equal protection to any class of people within the state. Everything else flows from that. If the court agrees with Jerry Brown's logic, same sex marriages will once again be legal in California, starting right around the one year anniversary of the beginning of the first round of legal same sex marriages.

I leave it to the lawyers among us to pick apart my analysis.


  1. It all depends on whether the Court upholds their earlier finding that sexual orientation is a "suspect class." It should not be, because so far suspect classes have been immutable, e.g. color, sex. But the Court usually does what it wants.

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