Prop. 8 backers take on AG's argument

SAN FRANCISCO — The sponsors of California’s voter-approved gay marriage ban accused Attorney General Jerry Brown on Monday of advancing a far-fetched legal theory to justify overturning Proposition 8.

Lawyers for the Protect Marriage coalition answered the about-face Brown took last month in urging the state Supreme Court to strike down the new marriage law, which amended the California Constitution to limit marriage to a man and a woman.

In their own fresh batch of court papers, they called his claim that voters lacked the authority to deprive a minority group of a basic civil right "a hoary message” that wrongly puts the court, not the public, in the role of framing the California Constitution.

"We will not mince words. The attorney general is inviting this court to declare a constitutional revolution,” reads the brief co-written by Kenneth Starr, dean of Pepperdine University’s law school and the former independent counsel who investigated President Bill Clinton. "His extraconstitutional vision is one of unprecedented judicial hegemony.”

The competing positions come in a series of legal challenges to Proposition 8 brought after the ballot initiative passed with 52 percent of the vote on Nov. 4. Brown initially said he would defend the measure in his role as attorney general.

But in a dramatic reversal, he changed course two weeks ago and joined same-sex marriage supporters in asking the court to void Proposition 8 and to uphold the estimated 18,000 same-sex unions sanctioned during the four months gay marriage was legal in the state.

Lawyers for the couples, gay rights groups and cities that brought the cases argued that the measure’s backers used a flawed process for qualifying the amendment for the ballot. Brown, however, has offered a different rationale, saying that the amendment itself is unconstitutional because the Supreme Court itself established marriage as a fundamental right in its May decision striking down previous one man-one woman marriage statutes.

Starr and co-counsel Andrew Pugno maintained in their brief filed Monday that in asking the court to trump the electorate, the attorney general "invented an entirely new theory.”

"The acknowledged importance of protecting the rights of minorities does not by itself grant the judiciary extraconstitutional powers. The judiciary is entirely a creature of the Constitution, not an independent, freestanding guardian of minority rights or natural law,” they wrote.

In an interview Monday, Brown responded by saying it was the sponsors of Proposition who had misunderstood the role of the courts in a democratic society.

"Mr. Starr ignores the fundamental doctrine of judicial review and the historic duty of the Supreme Court to guard our fundamental liberties,” he said. Brown added that once the cases are fully briefed and argued, the central question for the justices will be whether "there is a core of liberty that is guaranteed in the sense that the court will protect it, or is there no core that can’t be changed by 51 percent of the people.”

Also Monday, lawyers for San Francisco and five other counties, as well as for gay couples who married during the four-month window, asked the court to let the existing marriages stand even if it upholds Proposition 8.

They argued that nothing in the language of Proposition 8 nor the ballot arguments submitted by Protect Marriage made it clear the gay marriage ban was designed to apply retroactively.

"Because retroactive application was not brought to the attention of the voters, there is no reason to believe that voters intended that Proposition 8 invalidate existing marriages,” wrote San Francisco City Attorney Dennis Herrera and a team of private lawyers who volunteered to represent gay couples at no cost.

Proposition 8’s sponsors have argued that the 14-word measure, which holds that "only marriage between a man and a woman is valid or recognized in California,” effectively bars the state from acknowledging any same-sex marriages, regardless of when they were sanctioned.

Lawyers from the National Center for Lesbian Rights, Lambda Legal and the American Civil Liberties Union submitted their own response to Brown’s brief. They reiterated the point from the original Proposition 8 lawsuits that the measure represented such a sweeping change that it should have gone before the Legislature before being submitted to voters.

But they said they shared the attorney general’s position that majority rule must bow, in the case of Proposition 8, to the constitution’s guarantee of equality.

"Under the view advanced by the (measure’s sponsors), once a majority of voters has spoken, the state’s judiciary has no more than a ceremonial role to play in considering even the most transparent and egregious infringement of minority rights otherwise guaranteed by our state Constitution,” they said.