David Codell - California Supreme Court Review of Prop 8

12/30/08 announcement of the Human Rights Campaign's Los Angeles Steering Committee: On January 27, 2009, the Committee will host a presentation by constitutional attorney Dave Codell, "an attorney who was part of the team who wrote the brief to the California Supreme Court, resulting in the 15 May 2008 decision ruling that denying gay and lesbian couples the right to marry is unconstitutional."

Long-Term Commitment - The Recorder's annual retrospective on the California Supreme Court

12/31/08: Santa Clara University law professor Gerald Uelmen repeats his belief that the California Supreme Court will uphold Prop. 8. Of In re Marriage Cases, 43 Cal.4th 757, he says that the Court "clearly went out on a limb, and the people sawed it off." If the Court invalidates Prop. 8, Uelmen predicts a recall movement to oust Chief Justice Ronald George.

Although California Attorney General Jerry Brown recently reversed his position on Prop. 8, Uelmen rejects Brown's argument that Art. I, Sec. 1, of the California constitution protects an "inalieable right" of liberty at the core of the right to marry, and that a majority vote can not, without compelling justification, abridge this fundamental right. "He's suggesting that if you label a right inalienable that somehow it becomes untouchable by constitutional amendment," Uelmen said. "And I think that just turns the constitution on its head."

Kent Richland, an appellate specialist at Los Angeles firm Martin, Stein & Richland, accepts Brown's argument: "You are essentially talking about a majority of the people being able to determine that any minority has less rights than others," he said. "And that's contrary to the fundamental concept of equal protection. There's reason to think that this court would be extraordinarily disturbed by any system in which a minority isn't entitled to the same rights as others."

UC Berkeley law professor Jesse Choper believes that if the Court sustains Prop. 8, it will not also invalidate the 18,000 same-sex marriages performed before the election. He bases his belief on an analogy: if nullifying the marrages "were not the denial of a civil benefit, but an imposition of a criminal sanction, it would be unconstitutional to be ex post facto."

Justice Kennard denied review of Prop. 8, except on the question of retroactive application, because, Richland says, "she saw [retroactivity] as a crucial issue that had to be resolved immediately, but that the other issues could go through the trial court, the court of appeal and the Supreme Court. She's always not wanted the Supreme Court to act precipitously."

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The Recorder's profile of attorney Frederick Hertz

12/30/08 The Recorder (subscription required): "The mustached mediator has written books for same-sex couples looking to form or dissolve relationships." Listen to the Cal Law interview here.

California Attorney General Jerry Brown first in decades to go against voters

12/23/08 San Francisco Chronicle: Chronicle reporter Bob Egelko says that Brown's "argument against the initiative isn't based on any clearly established legal doctrine or precedent, the standard suggested by Deukmejian and other former attorneys general."

Former California Attorney General and Governor George Deukmejian believes that absent case law to support his argument on Prop. 8, Brown should defend the law.

According to Egelko, former California Attorney General John Van de Kamp "said Brown would probably be on more solid ground if he were arguing that Prop. 8 violated the U.S. Constitution, rather than invoking the California Constitution."

Former California Attorney General Dan Lungren finds " it's very troubling when you [referring to Brown] announce that you're going to defend (Prop. 8) and then, some weeks later, say you're not going to defend it."

Jerry Brown Talks to Cal Law Legal Pad About Prop 8

12/24/08 Cal Law Legal Pad: Interviewed by Mike McKee of The Recorder, California Attorney General Jerry Brown "said he believes that legal experts who think his position has no chance haven’t read the high court’s ruling in In re Marriage Cases, 43 Cal.4th 757. 'There are some fundamental principles that America is based on,' he said."

Brown's Stand on Prop. 8 Raises New Questions

12/24/08 Los Angeles Times: "California Atty. Gen. Jerry Brown's decision to throw the weight of his office behind same-sex marriage has sparked debate over whether his arguments will actually do more harm than good for those hoping to overturn the initiative."

Jerry Brown Proposes a New Theory Against the Validity of Proposition 8

12/21/08: New York Law School Professor Arthur S. Leonard summarizes and assesses issues raised in the briefs filed on 12/19/08 by California Attorney General Jerry Brown and Yes on 8 counsel Kenneth Starr. Professor Leonard finds no precedent for Brown's argument that Prop. 8 should be overturned because it violates the state constitution's guarantee of fundamental liberty.