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Ear to the Ground

Brown Moves to Nix Prop. 8

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Posted on Dec 20, 2008

Should he run again for governor of California, Jerry Brown could face off against San Francisco Mayor Gavin Newsom, who has been a prominent supporter of gay marriage.

California Attorney General Jerry Brown, who’s considering running for another stint as the Golden State’s governor, has changed his position on Proposition 8 and has asked the state Supreme Court to nullify the gay marriage ban on grounds that it violates citizens’ inalienable rights as guaranteed by the California Constitution.

Not surprisingly, the Protect Marriage coalition, which supports Proposition 8, begs to differ and has enlisted prosecutor Kenneth Starr (remember him?) to argue its case before the state Supreme Court around March 2009.

Los Angeles Times:

The California Constitution protects certain rights as “inalienable,” Brown wrote. Those include a right to liberty and to privacy, which the courts have said includes a person’s right to marry.

The issue before the court “presents a conflict between the constitutional power of the voters to amend the Constitution, on the one hand, and the Constitution’s Declaration of Rights, on the other,” Brown wrote.

The issue “is whether rights secured under the state Constitution’s safeguard of liberty as an ‘inalienable’ right may intentionally be withdrawn from a class of persons by an initiative amendment.”

Voters are allowed to amend other parts of the Constitution by majority vote, but to use the ballot box to take away an “inalienable” right would establish a “tyranny of the majority,” which the Constitution was designed, in part, to prevent, he wrote.

In an interview, Brown said he had developed his theory after weeks of consultation with the top lawyers in his office. “This analysis was not evident on the morning after the election,” he said.

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By cyrena, December 21, 2008 at 9:17 pm Link to this comment

In an interview, Brown said he had developed his theory after weeks of consultation with the top lawyers in his office. “This analysis was not evident on the morning after the election,” he said.



I’m really glad that Jerry Brown got to this correction. At the same time, I think it’s pretty far-fetched to suggest that “This analysis was not ‘evident’ on the morning after the election,” because it was EVIDENT in the composition/language of the proposition/measure to begin with!!

And this ‘analysis’ could have been managed by a first year constitutional law scholar. We can’t just ‘vote’ to take away the inalienable rights of other people, or otherwise criminalize them. Why does this sound so familiar? How many Centuries is it gonna take to breed the lynch-mob “we hate you because you’re not like us” mentality out of the human society? 

But I digress. This ‘analysis’ really could have, (and should have) been made long before it got to this point. There’s a very specific reason why the Founders designated certain rights as ‘inalienable’ and the language speaks for itself, as does volume upon volume of legal opinion and precedent.

From the legal communities view, this challenge was inevitable, and we knew it would be headed right back to the State Supreme Court.

So it seems more like somebod(ies) dropped the ball (or tried to dodge it)to suggest that this wasn’t always perfectly evident from a standard read of the California and US Constitutions. Meantime, look at all the shit it’s stirred up.

On the other hand, that was bound to happen anyway, because this has been in the works for far too long, and must be resolved. It has to be resolved at the Federal level as well, but this is a start.

Meantime, folks need to read up on their respective Constitutions. It might save some of this political drama.

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By jovlns, December 21, 2008 at 9:03 pm Link to this comment

Thank you, Jerry. Thank you for fighting this ridiculous law that people like Rick Warren helped brainwash the Christian electorate to voting for. I am sure glad that I don’t believe in the same Jesus that Rick Warren believes in.

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By KDelphi, December 21, 2008 at 3:56 pm Link to this comment

felicity—I think that we will have to wait. It sesms to be changing all the time. I do remember, that, during the campaign , it was “civil unions” only, and, both he and Biden were AGAINST gay marriage. I suppose that that that could change. But, it would seem to be a matter of “values” rather than law, if you support civil unions (legal) , but not marriage (more than that? Or LESS—I just didnt like being married—I dont begrudge anyone else), it seems to be a value judgement, not a matter of law.

Civil rights are equal Social rights are not?

I think it means that the couple can have most of the civil rights that a married couple does. Hospital privileges, they can make up a will, (they already can!), can adopt children as a couple, etc. That is the only way I know to interpret it.

Anybody here an attorney specializing in Marital Law?

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By felicity, December 21, 2008 at 2:36 pm Link to this comment

KDelphi - of course a civil union is when (two) people stand before a civil magistrate (judge) who declares them, in a civil manner, cordially united.  I have no idea what it means other than if the law of a state permits gay marriage then Obama supports the law - although not gay marriage?

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By KDelphi, December 21, 2008 at 1:33 pm Link to this comment

dihey—Yes. Obfisczsting. That is why it is so difficult to either agree with him or disagree. But, after 8 yrs of evangelical “rule”, I’m inclined to be concerned when I dont hear a firm commitment.

In my opiinion, Jerry Brown used to be quite something. I dont know why he is doing what he is now, but, it is inevitable. In California??

As to gay marriage/polygamy—it just goes underground (well, polygamists have been allowed to THRIVE , by our govt, even if it breaks laws, under the guise of McVey type “religious freedom”—to own and sell your daughters, presumably). Gays will still co-habitate.

But all good, opposite-sex christian marriage will now thrive and be “protected”! Hallelujah!

In my state , the “gay marriage ban” ended up with , shall I say, “unintended consequences” It made all people co-habitating, who were not legally married, illegal! (Of course, it is not enforced). The first case that played out in the courts was of a man , who had lived with his common law wife (oops—doesnt exist anymore) for 15 yrs. They had 3 kids. Her name was, apparently, not on the Deed to the HOuse.

He beat her within an inch of her life. He was charged with felony domestic violence. His attorney argued that, since they were not “legally married”, she was not entitled to the “normal protections of a married woman”, and, that, he could only be charged with a misdemeanor assault. He got 6 mos, and she got as lifetime wheelchair. No, she probaby had to pay for it, since she wasnt on his insurance.

the law of unintended consequences…wait, do some here surmise thawh she “deserved it”? I guess I should not assume!

Another, perhaps, intended consequence, was that it brought out the “evangelical abortion/gays/war is good/sex is bad” crowd to re-elect Bush! Our state threw the election…

TURNED OUT GREAT! BTW—it was lead by one J. Kenneth Blackwell, who is up for head of the GOP—he is a horrible person. I suppose that P Obama wil “reach across the aisle to him” More like a “reach around”.

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By dihey, December 21, 2008 at 7:01 am Link to this comment

When Utah became a State of the Union it had to forbid polygamy. Can someone tell me what happened to the polygamous marriages which existed at the time? Were they declared illegal? When I consider the role that the Mormons played in the passing of Prop. 8 that should be an interesting issue.

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By nrobi, December 21, 2008 at 6:49 am Link to this comment

Isn’t Jerry Brown, the one person, who as governor tried to use his finger in the wind to find out which way to stand on all the issue that California faced?
I am sure that Jerry such as he is now, would not make a good governor, he has too much of the “liberal” tag tied to his name. If he has any stances that are sure and set, then I would certainly be surprised as hell!
I remember him from the 60’s and 70’s as the one liberal you could count on to make an ass of himself, during any campaign and during any stint as an elected official.
Has he changed at all? or are we still looking at the same Jerry Brown, who wants to run for governor again?

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By dihey, December 21, 2008 at 6:41 am Link to this comment

It is called fence-sitting. When Bama falls off, will it be to the left or the right?

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By KDelphi, December 21, 2008 at 1:25 am Link to this comment

Obama’s postion has always been for civil unioins, not same-sex marriage, right? I keep hearing Obama supporters saying he is opposed to Prop 8, so, that means he supports gay marriage,. I just dont see it. Anyone know his official position?

Would it be extrremely difficult for him to just state it? Has it changed?

It is not on, even if you search it..

For someone supporting “equal rights for LBBT”, Warren is a ridiculous choice.

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By P. T., December 20, 2008 at 11:41 pm Link to this comment

Same old Jerry Brown trying to figure out what position is to his advantage.

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By Robert, December 20, 2008 at 7:06 pm Link to this comment
(Unregistered commenter)

I agree it was wrong for him to ask Warren, but I think it would weaken him politically if he ‘threw him under the bus.’  He’s too smart for that.  We are going to have to live with this bad decision. 

I’ll just hope he actually moves on ENDA, National civil unions (as a runner up to full marriage rights), and ending the ban in the military. 

Until then, I am happy to read the AG of California changed his position before that state’s supreme court.  That will have an impact I think not only on public opinion, but on the judges.  It will make it easier for them to do the right thing in throwing Prop 8 out. 

Now if Arnold would enter a brief arguing the same thing… 

I’m a Jerry Brown fan tonight..

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By dihey, December 20, 2008 at 3:43 pm Link to this comment

And here is the latest news from that crazy state. “Yes to Prop. 8” is asking the California Supreme Court to nullify all same-sex marriages concluded in the State. I understand that there are about 18,000 such marriages. Guess who is taking the case for “Yes to Prop. 8”. Kenneth Starr!!!!
It is now firm that PE Obama has stumbled stupidly into a political and social minefield with his invitation to the Reverend Warren. The only way in which Obama can extricate himself from a story that will now not die as long as the cases are in court is to throw Warren “under the bus”. And pronto because otherwise he will be asked questions about this for a long time to come.

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