On Friday, California attorney general Jerry Brown decided not to honor an earlier promise to defend the constitutionality of Proposition 8, the state marriage amendment approved by voters on November 4. California voters were denied even a pro forma defense of the measure by the government official constitutionally charged to enforce state law — because he just changed his mind.
In a December 19 press release, the attorney general said: “Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification.” He thus endorsed the idea that marriage, as it has always been understood, is so grossly contrary to California’s constitutional principles that an amendment protecting that understanding cannot be allowed into the constitution even if duly enacted by voters.
To understand the depth of the betrayal here it is necessary to remember how we got to this point. In May 2008, the California supreme court announced that the state’s constitution contained a hitherto unseen mandate redefining marriage to include same-sex couples. In response, pro-family groups had gathered the requisite signatures to put Proposition 8 on the ballot. This measure would add a definition of marriage as the union of a man and a woman to the California constitution, thus correcting the state court’s misunderstanding of that document.
The California supreme court decided not to wait for the people of the state to weigh in on marriage and allowed licenses to issue to same-sex couples beginning in June. The attorney general also did his part in opposing the amendment by changing the official ballot description from a neutral description (that the amendment would define marriage) to say that Proposition 8 “eliminates the right of same-sex couples to marry.”
On November 4, it became clear that despite every effort by the judicial and political classes of the state to prevent their doing so, California voters had affirmed the principle that our inherited understanding of marriage as the union of a husband and wife deserved constitutional protection.
Opponents of the measure, including the city and county of San Francisco, then filed suit saying that Proposition 8’s single-sentence amendment was such a major change to the state constitution that it should have been approved by the legislature before going to voters and was thereby invalid. (This same legislature had twice voted to overturn California’s marriage law, enacted by voter initiative, despite a clear constitutional provision saying that a voter initiative could not be overturned by a legislative vote.) This is the case in which the attorney general has now decided that defining marriage as the union of a man and a woman is beyond the pale.
Ken Starr will be part of the legal team defending Proposition 8 on behalf of its proponents. It should be remembered that these proponents were granted the right to defend the marriage law only because the California supreme court gave them special permission to be part of the case. Without that permission, Proposition 8 would have gone without a voice in court.
All of this serves to confirm the worst fears of Proposition 8’s supporters. The political and legal elites of the state have done all within their power to endorse the idea that support for traditional marriage is the rankest kind of bigotry that does not deserve even a nominal word in its favor by government officials.
If Proposition 8 does not hold, this new dogma will be the official state policy — and this in spite of a clear legal mandate of the voters of the state to the contrary.
A court order invalidating Proposition 8 would also give the supreme court a super-constitutional power, above the amendment process provided for in the text of the constitution, to determine what subjects are germane to constitutional lawmaking by the people of the state. There is no other way to understand this new theory that a manufactured and unenumerated “right” can become so “fundamental” that it can no longer be the subject of a simple amendment. And, of course, who will decide whether a right has attained this stature? The California supreme court.
The question now appears to be whether the California supreme court will step away from the brink of legal chaos and affirm the principle that the government of California will be a government of laws and not of men and women. — William Duncan is director of the Marriage Law Foundation.