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December 20, 2008

Cal. AG Flops on Prop 8

California Attorney General Jerry Brown has gone back on his earlier statement that he would defend the will of the voters. He is now trying to persuade the California Supreme Court that Prop 8 is inconsistent with the California Constitution, which bans sexual orientation discrimination.

That argument worked for invalidating the traditional marriage statute which was voted on in 2000 (a statute must yield to the constitution). But Prop 8 is no mere statute, it is a constitutional amendment and thus stands on equal ground with the California Bill of Rights. People can argue about how it interacts with the earlier-enacted protections, but to say that it is impossible to amend the state constitution is, well, obviously wrong.

Prop 8 supporters are less than thrilled to have AG Brown "defending" their interests in the case and have retained super-advocate Ken Starr to make their arguments at the Court. I can say from personal experience that their case is in good hands. Dean Starr is one of the most impressive advocates I've ever had the chance to watch in action. Each word of his oral arguments is chosen with care and his written work comes from an earlier era, when gentlemen (and a few gentleladies) would come before the Bar to respectfully disagree. Seriously, his decisions as a D.C. Circuit judge, which our law student readers may have seen in their first-year case books or perhaps an Admin law class, are like stepping in the way-back machine (in a good way).

Below the fold I briefly lay out the two main arguments being made against Prop 8, aside from this "novel" theory of AG Brown.

First and most persuasive of the theories, simply because the law in this area is so ill-defined, is the argument that Prop 8 is a "revision" rather than an "amendment" to the California constitution. For reasons passing understanding, the California Constitution makes a distinction between the two without ever defining the difference. Revisions must be passed by the legislature, whereas amendments can be passed by a simple majority in a ballot proposition. The idea is that if Prop 8 is actually a revision, it must be invalid since it did not pass through the legislature. This is what the French call: le bullshit.

The other argument recognizes that Prop 8 as an amendment stands on equal ground with the state constitution. They are challenging the amendment as a violation of the federal Constitution. Under the jurisprudence that has over the years grown up around Fourteenth Amendment guarantee of equal protection, courts apply a stricter theory against states which enact laws discriminating against gays than is typically applied to laws which discriminate against unprotected minorities. Lawyers or law student readers may know this as the "rational basis plus" test or the "animus" test of Romer v. Evans. The idea is that federal law forbids laws which are "inexplicable by anything but animus." The law in question in Romer prevented any city, town or county in the state from taking any legislative, executive, or judicial action to protect gays from discrimination on the basis of their sexual orientation.

Even under the broadest understanding of the animus test, Prop 8 is not explicable only as animus directed against gays (although the Prop 8 campaign's shady commercials about gays seeking to indoctrinate your children belie this argument). Prop 8 is explained as promoting heterosexual families, a "public good." Under the test it does not matter why a legislature (or, in this case, voters) chose to pass a law, so long as some "hypothetically rational" excuse exists for it. Here, it does and is explicable as something other than animus. Hence, the argument sucks donkey balls.

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posted by Gabriel Malor at 12:04 PM

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