California Attorney General Brown reverses his position on Prop. 8, urging the Court to invalidate it; Yes on 8 would undo 18,000 same-sex marriages

12/19/08 California Attorney General press release: “Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification,” Attorney General Brown said. Click here for the brief, in which the Attorney General also argues that Prop. 8 neither represents a constitutional nor violates separation of powers.

12/21/08 NBC San Diego News: " 'It became evident that the Article 1 provision guaranteeing basic liberty, which includes the right to marry, took precedence over the initiative,' Brown said in an interview Friday night. 'Based on my duty to defend the law and the entire Constitution, I concluded the court should protect the right to marry even in the face of the 52 percent vote.' "

12/19/008 Reuters: "The right of same-sex couples to marry is protected by the liberty interests of the constitution," Brown told Reuters, referring to In re Marriage Cases. "If a fundamental right can be take away without any particular justification, then what kind of a right is it?"

12/19/08 AP, 12/20/08 San Francisco Chronicle, 12/20/08 Sacramento Bee, and 12/20/08 NY Times:

These articles provide summaries of arguments in briefs filed by Brown and Kenneth Starr, representing Yes on 8.

12/20/08 Los Angeles Times has the following statements by Brown, Santa Clara University Law Professor Gerald Uelmen, and UC Berkeley Law Professor Gordon Liu:

"In an interview, Brown said he had developed his theory after weeks of consultation with the top lawyers in his office. 'This analysis was not evident on the morning after the election,' he said."

Uelmen said Brown's argument "turns constitutional law on its head" and lacks support from any case law that he knows. He finds that it "it is much too radical for this court."

Liu said it was "extraordinary for the chief law enforcement officer of the state to decline to enforce a law -- even on the grounds that it is unconstitutional."

"The chief law enforcement officer of the state is charged with enforcing laws, even laws with which he disagrees," Liu said. "Whether or not it will carry the day, I have no idea."

12/20/08 San Jose Mercury News:

Brown rejected Liu's view that the Attorney General has a duty to defend Prop. 8. Brown compared his duty with that of California Attorney General Thomas C. Lynch, who opposed Prop. 14 in Reitman v. Mulkey, 64 Cal. 2d 529 (1966), aff'd 387 U.S. 369 (1967). Voters approved Prop. 14 in 1964 to overturn a fair housing law and to bar laws against racial discrimination in housing. According to the Mercury News, "It's unusual, but it happens," Brown said of an attorney general opposing existing law. "Existing laws include the whole of the constitution, and just as Attorney General Lynch filed a brief calling for the invalidation of Proposition 14, we're filing a brief here calling for the invalidation of Proposition 8."

12/20/08 Res Ipsa Loquitur blog: George Washington University Professor Jonathan Turley believes that "Brown’s position creates an interesting issue of legal ethics and obligations" and characterizes it as "hopelessly conflicted." He also believes that defenders of Prop. 8 have overreached in their attempt to retroactively invalidate pre-election, same-sex marriages.

12/19/08 Cal Law Legal Pad: This post has initial reactions to Brown's reversal by Therese Stewart, San Francisco Deputy City Attorney, and by Jennifer Pizer, staff attorney for the Los Angeles branch of the Lambda Legal Defense and Education Fund.