Jerry Brown’s Malfeasance
Today’s NRO editorial properly slams California attorney general Jerry Brown for violating his duty to defend California’s Proposition 8:
[I]nstead of presenting the best grounds in defense of the legality of Proposition 8, Brown’s brief offers the crackpot theory — beyond anything the opponents of Proposition 8 have argued, and beyond the scope of the briefing that the supreme court invited — that the constitutional amendment achieved by Proposition 8 is itself unconstitutional.…
Brown’s betrayal of the public trust deserves broader condemnation from political and legal leaders in California, including governor Arnold Schwarzenegger, irrespective of their own positions on marriage.
Brown’s brief also confusedly argues that Proposition 8 may not apply “retroactively” to same-sex marriages performed before its adoption. But this talk of retroactivity is sloppy. There is no dispute that Proposition 8 will apply only prospectively. The relevant question is whether it applies prospectively to all same-sex marriages, or only to those performed after Proposition 8’s adoption. There is no textual basis for the latter reading.
The intuition that the confused discussion of retroactivity may be trying to express is probably better expressed by the argument that Proposition 8 is improperly impairing pre-existing marriage contracts, in violation of the federal Constitution’s Contracts Clause (Article I, section 10: “No State shall … pass any … Law impairing the Obligation of Contracts”). But as Eugene Volokh has explained, the Contracts Clause has been held not to apply to marriage contracts. And under the modern regime of unilateral at-will no-fault divorce laws, it’s highly dubious that there is such a thing as a marriage “contract”.