07 Jan Prop. 8 UPDATE: Legal Briefs Filed
State Attorney General Jerry Brown was “profoundly wrong” and “invented an entirely new theory” when he urged the California Supreme Court to invalidate Proposition 8’s same-sex marriage ban on the basis that voters can’t be allowed to overturn fundamental liberties, attorneys for the measure said Monday. Brown’s reasoning would confer upon the state Supreme Court power it has never had, attorneys Kenneth Starr and Andrew Pugno said in their response to the attorney general’s December brief.
Brown “is inviting this court to declare a constitutional revolution,” the attorneys argued in the 29-page response. “His extra-constitutional vision is one of unprecedented judicial hegemony, a sweeping power vested in the least-democratic branch that overrides the precious right of the people to determine how they will be governed.”
“The attorney general’s theory would fundamentally alter the role of the California judiciary,” said the attorneys for ProtectMarriage.com, the official proponents of Prop. 8. “If the (initiative) process is done correctly, once the Constitution is changed, that’s the document the judges work from,” Pugno said in an interview. “This would put the court above the reach of the people when it came to amending the Constitution.”
Gay-marriage opponents filed legal briefs Monday accusing California Atty. Gen. Jerry Brown of having “invented an entirely new theory,” one that “fails at every level,” in his quest to find a reason to invalidate Proposition 8, which passed with 52% of the vote in November.
“The people have the final word on what the California Constitution says,” lawyers for the Protect Marriage Coalition wrote. “The practical result of the attorney general’s theory is that the people can never amend the Constitution to overrule judicial interpretations of inalienable rights.”
Legal experts said Starr and the Protect Marriage coalition had made a strong counter-argument in their filing Monday. Santa Clara University Law professor Gerald Uelmen, an expert on the state high court, said it “hits the nail on the head.”
“If you think of the Constitution as a compact between the people and those who govern us, to say the people have no power to amend a court’s ruling simply because the court . . . says this is an inalienable right — I think that is pretty far out.”