California attorney general refuses to defend constitutional ban on gay marriage
Brown first in decades to go against voters
Bob Egelko, Chronicle Staff Writer
(12-23) 20:49 PST -- Attorney General Jerry Brown's legal challenge to California's constitutional ban on same-sex marriage marks the first time that the state's top lawyer has refused to defend a newly enacted ballot measure since 1964 - another epic discrimination case that eventually reached the U.S. Supreme Court.
In November 1964, an overwhelming 65 percent majority of the state's voters approved Proposition 14, a constitutional amendment that overturned a fair-housing law and allowed racial discrimination in property sales and rentals.
Attorney General Thomas Lynch - newly appointed to succeed Stanley Mosk, a Prop. 14 opponent who had just been named to the state Supreme Court - concluded the initiative violated U.S. constitutional standards and left private lawyers representing sponsors as its sole defenders in court.
The state Supreme Court - minus Mosk, who removed himself from the case - overturned Prop. 14 in 1966, and the U.S. Supreme Court followed suit in 1967. Lynch filed written arguments urging the nation's high court to rule the measure unconstitutional.
Brown personally opposed Proposition 8, the initiative restoring the ban on gay and lesbian marriages that the state Supreme Court had struck down in May, but said the day after the Nov. 4 election that he planned to defend it in court.
On Friday, however, Brown took the side of gay rights groups and other opponents of the measure. He told the state Supreme Court that his usual obligation to defend state laws must give way, in this case, to his duty to uphold fundamental rights in the state Constitution.
It is a rare example of an attorney general taking on a law enacted by either the Legislature or the voters. The office typically represents state officials or agencies in court and often defends laws that the attorney general opposes.
Brown, for example, is on record as an opponent of capital punishment, but defends death verdicts against appeals by condemned prisoners.
"If a reasonable argument can be made in support of a law, that's what the attorney general will normally do," said Nelson Kempsky, who was chief deputy attorney general under Democrat John Van de Kamp and a top law enforcement assistant under Republican George Deukmejian. "But you can't feed it into a computer."
Brown's action Friday drew varied responses from his predecessors, including Deukmejian, who was attorney general from 1979 to 1983 before serving two terms as governor.
The state Constitution's mandate that the attorney general "see that the laws of the state are uniformly and adequately enforced" includes a nearly ironclad duty to defend the laws in court, said Deukmejian, who is retired from his law practice and lives in Long Beach.
The only exception, he said, is "if a law is clearly unconstitutional, based on earlier court decisions. ... If you think it's unconstitutional but there really is no clear law, then you have to put that aside" and defend the law, he said.
Deukmejian's criteria might be considered rigid in light of an episode during his tenure as attorney general, when he not only refused to defend a state law but sued the governor - who happened to be Brown - to try to overturn it.
Brown had just signed a measure that entitled state employees to union representation. Deukmejian, after taking office in 1979, argued that the law violated the State Personnel Board's constitutional authority to set employee salaries, and took his case to the state Supreme Court after his staff discussed the measure with the Personnel Board.
The justices were unimpressed. They upheld the law in a separate case, dismissed Deukmejian's suit, and castigated him for turning against his former clients.
Brown doesn't appear to be vulnerable to the same criticism, as he hasn't sued anyone and has left the defense of Prop. 8 to its proponents. But his argument against the initiative isn't based on any clearly established legal doctrine or precedent, the standard suggested by Deukmejian and other former attorneys general.
In his filing, Brown said Prop. 8 is probably valid under the state high court's past criteria for ballot measures that amend the state Constitution. In particular, he said, it is not such a fundamental change to the structure of government that it would amount to a constitutional revision, which requires a two-thirds legislative vote to reach the ballot.
But he said Prop. 8 should be struck down because "inalienable rights" in the state Constitution, including the liberty and privacy rights that support equal access to marriage, shouldn't be subject to repeal by majority vote. The court has never considered that theory.
"My job is to see that the laws of the state are uniformly and adequately enforced, and that includes Article I of the Constitution," where those rights are set forth, Brown said in an interview.
In defense of Brown
Van de Kamp, Deukmejian's successor as attorney general from 1983 to 1991, was willing to cut Brown a little slack.
"If he clearly feels the Constitution's been violated, then I think he has a duty to the Constitution first, and secondarily to the vote of the people," said Van de Kamp, who now practices law in Los Angeles.
But he said an attorney general should be firmly convinced that a law is unconstitutional before refusing to defend it, an action he never took. Van de Kamp also said Brown would probably be on more solid ground if he were arguing that Prop. 8 violated the U.S. Constitution, rather than invoking the California Constitution.
His successor, Republican Dan Lungren, now a representative from Gold River (Sacramento County), was sharply critical.
"You are the people's attorney. When the people make a decision, you give them the benefit of the doubt," said Lungren, who added that he never refused to defend a state law while serving as attorney general from 1991 to 1999.
Referring to Brown, he said, "I think it's very troubling when you announce that you're going to defend (Prop. 8) and then, some weeks later, say you're not going to defend it."
That leaves the majority of voters at a disadvantage, Lungren said, as they now face courtroom opposition from both the plaintiffs seeking to overturn the initiative and the state's lawyer who ordinarily represents them.
The Prop. 8 campaign committee, called Protect Marriage, will now defend the measure by itself at the upcoming hearing, and has been given until Jan. 5 by the court to file additional arguments in response to Brown.
Lungren, who supported Prop. 8, said Brown's legal argument against the measure is harmful to voters' interests.
"You say something is an inalienable right and the people have no right to change it," Lungren said. "We're removing more and more governmental activity from the decision-making of the people and their elected representatives."