By Kathleen Gilbert

SACRAMENTO, December 22, 2008 ( – California Attorney General Jerry Brown has reversed his pledge to uphold the decision of the voters on Proposition 8, telling the Supreme Court Friday that he would instead attack the amendment he was to defend in court.

In a 111-page court brief, Brown based his reversal on the theory that an amendment extinguishing “fundamental constitutional rights without compelling justification” ought to be nullified, even if legitimately voted into law.

“There are certain rights that are not to be subject to popular votes, otherwise they are not fundamental rights,” said Brown in an interview. “If every fundamental liberty can be stripped away by a majority vote, then it’s not a fundamental liberty.”  As attorney general, Brown was expected to act as lead counsel against the three lawsuits vying to strike it down. 

Although last month Brown said he planned to “defend the proposition as enacted by the people of California,” he now says he and his senior lawyers concluded from court precedent that they could not defend Prop. 8. 

“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,” he said.  His says his attack relies at least in part on the precedent of Attorney General Thomas C. Lynch’s fight in 1964 to invalidate Proposition 14, which overturned an anti-discrimination housing law in favor of greater property owner rights.  Accordingly, Brown cited a conflict between voters’ power to amend the state Constitution and “the duty of the Supreme Court to protect minorities and safeguard liberty.”

True marriage supporters had expressed anxiety that Brown, who has long supported homosexual “marriage,” would allow his personal beliefs trump the function of his office.  During the campaign, Prop. 8 supporters lost a court battle to remove a phrase added by Brown into Prop. 8’s official title and summary saying the initiative “eliminates (the) right of same-sex couples to marry,” which many felt cast the initiative in an unnecessarily negative light. 

Brown’s argument takes a different approach from the other cases against Proposition 8, which claim that the ballot initiative was not an amendment at all, but a broader constitutional revision.  The three cases were launched immediately after California voters passed Proposition 8 on November 4, thereby adding a sentence to the Constitution that explicitly defines marriage as between a man and a woman.

Some see a political motivation behind the maneuver by Brown, who will likely run for governor of California in 2010.  One of his potential competitors is San Francisco mayor Gavin Newsom, who has achieved celebrity status among the homosexualist constituency for his aggressive tactics promoting the homosexual agenda.

Andrew Pugno, general counsel for and the Proposition 8 Legal Defense Fund, said Friday that it was “disappointing that the Attorney General has refused to defend the vote of the people as the law instructs him to do.”

“It will take some time to digest this new and unusual legal argument he has created,” he continued.  “As the only remaining party defending Prop 8’s validity in these lawsuits, it is more important than ever that we remain focused on our role of providing the Court with the law and argument that shows Prop’s validity.”

The Protect Marriage campaign announced Friday that Kenneth Starr, dean of Pepperdine University’s law school, former federal judge and independent counsel who headed the investigation of Bill Clinton, had joined their team as lead counsel.  In the briefing handed to the Court Friday co-written by Starr, the campaign argued that the Court had no authority by law or precedent to overturn the amendment, despite its controversial nature.

“For this court to rule otherwise would be to tear asunder a lavish body of jurisprudence,” said the court papers. “That body of decisional law commands judges — as servants of the people — to bow to the will of those whom they serve — even if the substantive result of what people have wrought in constitution-amending is deemed unenlightened.”

The brief also asserted that earlier same-sex marriages could no longer be recognized under California law, as the new amendment states. “Proposition 8’s brevity is matched by its clarity. There are no conditional clauses, exceptions, exemptions or exclusions,” it affirms.

See related coverage:

California Attorney General Asks Supreme Court to Rule on Prop. 8