Blame Jerry Brown for no decision on constitutionality of gay marriage

July 3, 2013

OPINION By PETER SCHEER

The Supreme Court has ducked the legal challenge to Prop 8, thereby avoiding a landmark ruling on one of the central constitutional claims of our time: the right of gays to marry, not just in California but in every state, city and village in the nation. While I take no pleasure in saying “I told you so,” this outcome, resulting from a political miscalculation by Jerry Brown, was predictable and predicted.

In this 2010 article in the Huffington Post, I criticized then-Attorney General Brown for his announced decision not to defend Prop 8 in the federal appellate courts . I said his absence from the litigation could cause the otherwise promising right-to-marry claim to fail, either in the federal Court of Appeals or the US Supreme Court, for lack of legal “standing,” a constitutional requirement.

I wrote:

“As California’s Attorney General, Brown has the job of defending the state, and its laws, in court. Like a private lawyer representing a client, he is supposed to defend California whether or not he thinks the state’s legal position is correct. . . . Brown’s absence may have helped his own political fortunes, but, ironically, his strategy of non-participation ultimately may play into the hands of Prop 8′s supporters.”

The lesson here is that government officials should not rewrite their official job descriptions for short-term political advantage. The official duties and responsibilities of public office exist for institutional reasons that transcend the preferences or ambitions of the office holder. In the Prop 8 litigation, Brown should have held his nose and presented a half-hearted defense of Prop 8, while telling voters his actual views about the law.

Fortunately, as it turns out, the Supreme Court’s action leaves intact the trial court’s decision invalidating Prop 8, which has the effect of restoring gay marriage in the Golden State. (I got that part wrong in my 2010 article!). But lost was the opportunity for a Supreme Court ruling grounding gay marriage in the constitution as the supreme law of the land.

Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition.