Blame Jerry Brown for no decision on constitutionality of gay marriage

July 3, 2013
Peter Scheer

Peter Scheer

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.


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13 Comments

  1. Russ J says:

    Jerry Brown and Kamila Harris totally failed in doing their job to defend the will of the people who live and vote in California. The justices were wrong in ruling that prop 8 supporters had no legal standing to defend prop 8 just because the Governor and AG wouldn’t defend it. Jerry Brown and the AG are duty bound to defend California law. By choosing not defending our law, they are imposing their position and not the will of the voter. I could care less if gay people want to marry but this ruling does not green light Gay marriage at a national level, it is something completely different. This ruling affects the proposition process of California because propositions are the legal last resort of the populace but all that could change now. Propositions might not have legal standing if challenged and our Governor doesn’t like with the law. The people of this state have no clue as to what this is about so it really doesn’t matter. They just sit there in their California stupor and continue to elect the same idiots over and over.

    (6) 20 Total Votes - 13 up - 7 down
  2. hijinks says:

    The premise of this article is dumb. It suggests evading morality for the sake of legal expediency. If a law is wrong, the state shouldn’t defend it. To say “I told you so” just reflects on the writer’s arrogance, not what’s right and wrong.

    Follow the writer’s logic: if it’s a requirement the state defend every bad law, what happens when we have a really horrendously immoral one? Like one that requires extermination of a large part of a nation’s population? We’ve dealt with this: think Nurenberg. A public official who defended such a law would be guilty of implementing crimes against humanity, and would personally pay.

    Brown did the right thing by refusing to “defend” Prop 8. How could a decent human being do anything else? Politics on this issue is far ahead of the courts anyway, and that, not a court decision the writer likes, is probably a lot more important.

    (-8) 24 Total Votes - 8 up - 16 down
  3. shelworth says:

    Seems to me it is unconstitutional to give any benefits for marital status. Everything should be based on the individual. Oh yeah, and why do people get a tax break for having kids? Seems to me they should have to post a $250K bond at birth that they get back when the kid turns 18 IF the little bundle of joy hasn’t caused any problems for the rest of us.

    (9) 17 Total Votes - 13 up - 4 down
    • scottabeer says:

      Unconstitutional? When the constitution was written, how were “the benefits” given? Oh wait, Never mind. as you were >back to the salt mines.

      (-6) 12 Total Votes - 3 up - 9 down
      • shelworth says:

        Actually, you’re right, it’s unconstitutional for the government to “give” anybody anything.

        (8) 12 Total Votes - 10 up - 2 down
        • zaphod says:

          armaments planned obsolescence debt

          (0) 0 Total Votes - 0 up - 0 down
        • Rambunctious says:

          Marriage is just another activity the Federal OR State Monster has no business in at all. Get the GOVERNMENT out of our lives. White, Black, Brown, Rich or Poor, Gay or straight. It will be a better place to live if we do.

          (2) 2 Total Votes - 2 up - 0 down
  4. Slowerfaster says:

    I disagree. If Brown had decided for the state to participate in the case it would have conveyed legal standing and provided cover for the prop 8 proponents. Justice Kennedy may well have then decided to rule along with the four conservatives bloc, thus switching the 5 -4 decision, further delaying any progress.

    California, with its enormous population, is the linchpin for the federalism and constitutionality of this issue.

    (-2) 14 Total Votes - 6 up - 8 down
    • SLOBIRD says:

      California is the armpit for everything that is wrong in this Country. Abortions, OK… License for illegals, OK… Voting for illegals, OK… Killing agriculture/ranching, OK… Unsolved major water issues, OK… Train to nowhere, OK… Feinstein’s husband being spoon fed billion$ by the Federal government (Sale of unused Post Offices) and California (wins contract for train to nowhere), OK… Pelosi gets restaurants that she is partnership in deferred for Obamacare along with over 200 restaurants and hotel chains in her district, OK… California is going to give welfare to illegals according to Brown last week, OK… California has the highest gas tax in the US, OK… California is controlled by the unions (95,000 state workers just got a raise from the new Billion$ the state will be collecting from the new gas tax, OK, California elects officials who do not support the will of the people through elections, OK. California is releasing prisoners to the Counties or back to the streets, OK, California has a balanced budget this year if you don’t count the over $500 billion$ is has borrowed the past several years and the unfunded pensions for billions$ for the state works, OK.. etc. etc. etc.

      No one are, we will just keep winning those votes for the demorats by recognizing all these unchristian, special interest groups. Just look at the leadership of the demorats and think about the power they want, need, and insist on having at all costs. Good for them, they are getting it and we are paying the bill for it.

      (6) 26 Total Votes - 16 up - 10 down
      • scottabeer says:

        If I was you (and i’m not) i would leave this Armpit. You don’t think Christians are special interest groups? They are CONTROL freaks. OOPS. Hypocritical control freaks. We need Californians to get a raise. They have more purchasing power. it’s called an economy. Without spenders, there are no businesses. Do you think the butcher at Vons or Albertsons gives a rats ass where the customer got paid from? the Butcher, baker and candlestick maker have lives of their own. they don’t need Christians to tell them what they can or can’t do with their bodies. What the Lady does around the corner or across town or county or state or country is NOT UP YO ME! (or you) My sister used to get roughed up by nuns for using her left hand. They decided it was wrong. Have you seen the Little Rock 9? Christians telling someone they didn’t know that they needed to live different.. used the BIBLE to justify their rules. it’s simply an example of other people deciding how others should act and using christ as some sort of imaginary fulcrum to tilt the argument to their side. You say Look at the democrats need for power.. You realize people can see what you wrote. name a politician that doesn’t desire it. Look at the republican party. Nothing but idiots. McConnel? Really? rubio? Jindell Rayan and romney/ oh puleaze. saying something like the democratic leadership want, need and insist? yes, they want us ALL to flourish rather that a handful of people. This isn’t the Matrix. This is real life with humans you’ve never met suffering from others that Want, need and insist on controlling them. (for the good of some arbitrary ruler)

        (-4) 18 Total Votes - 7 up - 11 down
  5. scottabeer says:

    i don’t care about all of the Cleverly crafted wording. I don’t care how wordsmithed it is. Gays get married/ yes!

    I like your Christ, I do not like your Christians. Your Christians are so unlike your Christ.

    Mahatma Gandhi

    (-13) 47 Total Votes - 17 up - 30 down
  6. Black_Copter_Pilot says:

    Hear hear!

    The tragedy is the good folks of Cal voted their entitlement wallets and in went Jerry. We should of fired him for not doing his job back when he was AG.

    (11) 43 Total Votes - 27 up - 16 down

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