AG Jerry Brown’s decision to oppose Prop 8 in the Supreme Court will,
ironically, only help the pro-Prop 8 forces
By Peter Scheer
(Peter Scheer is executive director of the California First Amendment Coalition, a non profit advocacy group.)
The California Supreme Court, in one of its most important cases, is
weighing a challenge to Prop 8, the constitutional amendment banning
gay marriage. If the Court upholds Prop 8, one of the people you can
blame is Attorney General Jerry Brown.
But wait a minute. Didn’t Brown make headlines recently by filing a
brief in the Supreme Court arguing that Prop 8 should be overturned?
Yes, he did. And that’s the problem.
In cases before the Supreme Court, it is the Attorney General’s job
to defend California’s laws unless they are so plainly invalid that
no plausible defense can be offered. However objectionable on moral
grounds, Prop 8 is not legally indefensible. Brown knows that. By
switching sides in the Supreme Court, the Attorney General ripped up
his job description–a political gambit that no doubt pleases his
supporters but, ironically, only makes it harder for the Court to
overturn Prop 8.
The California Supreme Court is in a tough spot in the Prop 8 case.
It went out on a limb a year ago to strike down a state statute
forbidding same sex marriage, ruling that the law violated
California’s constitution. Prop 8, which voters enacted by a margin
of 52% to 48%, responds directly to that controversial decision by
amending the state constitution, thereby removing–or attempting to
remove– the basis for the Court’s prior ruling.
The current Prop 8 case poses a test of the Court’s legitimacy, its
most valuable asset, at a crucial moment in its history. The Court is
the only institution of California government that is seen as able to
take on hard issues, to decide them in the public interest, and to
act decisively. Although its authority has never been greater, that
authority derives from the public perception that the Court is above
the political fray.
Should the Court strike down Prop 8–overriding an electoral majority
for the second time on the issue of same sex marriage–it must do so
for reasons that are seen as legitimate and legally convincing, even
though most Californians may disagree with the outcome. The Court
must avoid the appearance that it is asserting a political preference
disguised in legal principles. That is a tall order.
In this context the last thing supporters of gay marriage need
is a grandstanding attorney general who, by abandoning his assigned
institutional role, creates doubts about the fairness of the Supreme
Court proceeding and provides an opening for Prop 8 supporters to
argue that the case has been transformed from a legal to a political
contest in which victory goes to the most powerful interest groups.
Can the Court still overturn Prop 8 in a way that will not compromise
its legitimacy? I think so, although the best course at this stage
may be a ruling grounded in the US Constitution instead of the
California Constitution. Under a federal approach, Prop 8’s
problematic status as a state constitutional amendment loses
relevance: vis a vis the US Constitution’s equal protection
guarantee, Prop 8 is no different than any state statute or city
ordinance.
Deciding the case on the basis of the federal constitution also would
legitimize the Court’s ruling because application and interpretation
of federal law is part of its essential function in the original
federal judicial scheme. Legitimacy also comes from the fact that the
Court’s decision, if based on the federal Constitution, would not be
the last word, but would be subject to review by the US Supreme Court.
Of course, the availability of federal Supreme Court review is also
the main disadvantage of this strategy. Still, the US Supreme Court
might decline to review the case, leaving in place a ruling blocking
Prop 8. Or it could review it and surprise everyone with a decision
overturning Prop 8. (Don’t underestimate the influence of the Supreme
Court’s mostly liberal clerks on the gay marriage issue.)
Let’s just hope Jerry Brown keeps his distance from any further judicial
proceedings. With friends like Brown, Prop 8’s opponents don’t need
adversaries.
——
Peter Scheer is executive director of the California First Amendment
Coalition, a nonprofit advocacy group. www.cfac.org
