On Friday, California Attorney General Jerry Brown filed his brief in the pending lawsuit concerning the validity of Proposition 8. (For prior posts on Prop. 8, see here, here, and here.) In a surprise move, the Attorney General came out against Proposition 8. It had been expected that, as the top law enforcement officer in California, the Attorney General would defend the measure. Based on an admittedly quick read, I found this rather long (i.e., 92-page) brief to be a bit perplexing in ways that, of course, did not make it into mainstream news stories about the brief.
For the first about 75 pages, the Attorney General comes out squarely against the plaintiffs’ arguments in the lawsuit. The Attorney General insists that the plaintiffs’ argument that Proposition 8 is a “revision” rather than an “amendment” of the constitution is inconsistent with past precedent, which has affirmed initiatives that have added, deleted, or limited provisions in the Declaration of Rights in the California constitution and that have implicated rights declared to be “fundamental.” The Attorney General also criticizes the plaintiffs’ argument that this situation requires more searching scrutiny than in past cases because it involves the rights of a group that has now been labeled a suspect class by the California Supreme Court. The Attorney General calls this suggestion “problematic” because it would make the “amendment” versus “revision” analysis turn on the precise legal reasoning of a particular case. This would create an incentive for the California Supreme Court to decide that certain rights are fundamental or certain classes are suspect (rather than deciding a case on narrower constitutional grounds) in order to insulate its decision from being overturned through the initiative process. It would also call into doubt the validity of past propositions that are now considered to be the settled law of California.
Then, in the last about 16 pages, much of which consists of long quotes and footnotes, the Attorney General pivots and argues that Proposition 8 is invalid because the right to liberty in the California constitution is, by its own terms, inalienable. This right to liberty, the Attorney General argues, includes the right to marry–a right to marry that has evolved over time in California to include both interracial marriage and same-sex marriage. Being inalienable, the Attorney General argues that the right to liberty/right to marry of lesbians and gay men cannot be abrogated either by the legislature or by the electorate (circumventing the legislature through the initiative process, as it did in enacting Prop. 8), without demonstrating some compelling interest given that this right is considered fundamental and it involves the enjoyment of the right by a suspect class.
While I certainly favor the Attorney General’s conclusion in this last section of the brief, the argument supporting that conclusion seems to be at odds with the argument in the rest of the brief. After all, if same-sex marriage is encompassed in the evolving right to liberty, why aren’t the rights of criminal defendants also included in the right to liberty? As discussed at length in the first part of the brief, the rights of criminal defendants have been limited by initiative in the past. Under the Attorney General’s theory, why isn’t the validity of these past initiatives not similarly cast in doubt because they infringe on the inalienable right to liberty (either as presently construed or as it is to be construed as it evolves in the future)? Doesn’t the Attorney General’s argument thus cast the same doubts on prior initiatives that he accuses the plaintiffs in the Prop. 8 lawsuit of creating? Moreover, why should the Attorney General’s point that this case involves a fundamental right and a suspect class be any more availing in the context of his own argument than it was for the plaintiffs? Wouldn’t the Attorney General’s argument create the same incentives for the California Supreme Court to frame its analysis of constitutional questions in terms of inalienable rights, fundamental rights, and suspect classes so as to circumvent the initiative process? The arguments are clearly novel; I just question whether they were particularly well thought-out.
I would be very interested in hearing others’ thoughts on this unusual brief.