CA AG Brown: 'Proposition 8 violates the 14th Amendment'

California A.G. Jerry Brown

California Attorney General Jerry Brown tonight filed his answer (pdf) to Perry v. Schwarzenegger, the federal Defense of Marriage Act challenge brought by Ted Olson and David Boies.  Brown takes a far different tack in this California DOMA challenge than did President Obama’s Justice Department in another California DOMA challenge, Smelt v. United States (discussed here).

Brown states:

The Attorney General of California is sworn to uphold the Constitution of the United States in addition to the Constitution of the State of California.  Cal. Const., art. XX, § 3.  The United States Constitution is the “supreme law of the land.”  U.S. Const., art. VI, § 2; Cal. Const., art. III, § 1.  Taking from same-sex couples the right to civil marriage that they had previously possessed under California’s Constitution cannot be squared with guarantees of the Fourteenth Amendment.  Accordingly, the Attorney General answers the Complaint consistent with his duty to uphold the United States Constitution, as Attorney General Thomas C. Lynch did when he argued that Proposition 14, passed by the California voters in 1964, was incompatible with the Federal Constitution.  Reitman v. Mulkey, 387 U.S. 369 (1967).

In answering the Complaint, Brown, a named defendant, must respond to each paragraph of the Complaint.  In part, he states:

In response to paragraph 7 of the Complaint, the Attorney General admits that Proposition 8 denies same-sex couples the right to civil marriage in California, and that it therefore violates the Fourteenth Amendment to the United States Constitution.

Later:

In response to paragraph 20 of the Complaint, the Attorney General admits that sexual orientation is a characteristic that bears no relation to a person’s ability to perform or contribute to society and that the sexual orientation of gays and lesbians has been associated with a stigma of inferiority and second-class citizenship, manifested by the group’s history of legal and social disabilities (see In re Marriage Cases, 43 Cal.4th at 841).

Then:

In response to paragraph 30 of the Complaint, the Attorney General admits that since the passage of Proposition 8, California law has restricted civil marriage to opposite-sex couples, and denied civil marriage to same-sex couples; that under California law, gay and lesbian couples cannot enter into a civil marriage with a person of their choice; and that, as the California Supreme Court found in In re Marriage Cases, 43 Cal.4th at 782, the inability to marry the person of their choice denies gays and lesbians, as well as their families, the personal and public affirmation that accompanies state-sanctioned civil marriage.

He goes on to admit that Proposition 8 results in both Due Process and Equal Protection violations:

In response to paragraph 39 of the Complaint, the Attorney General admits that, to the extent that Proposition 8 took from Plaintiffs their previously held fundamental right to marry, the measure violates the Due Process clause of the Fourteenth Amendment to the United States Constitution on its face; and that by denying civil marriage to gay and lesbian same-sex couples that it affords to heterosexual opposite-sex couples, the California Constitution denies gay and lesbian couples and their families the same dignity, respect, and stature afforded families headed by a married couple.  See In re Marriage Cases, 43 Cal.4th at 846-47.

. . . .

In response to paragraph 41 of the Complaint, and in light of the state constitutional rights confirmed by the California Supreme Court in In re Marriage Cases, the Attorney General admits that the passage of Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution on its face.

Unlike the Obama DOJ Motion to Dismiss filed today in Smelt, the Brown Answer filed in Perry cites approvingly to Loving v. Virginia, on the 42nd anniversary of the ruling.  Brown writes:

In response to paragraph 35 of the Complaint, the Attorney General admits that the United States Supreme Court found in Loving v. Virginia, 388 U.S. 1. 12 (1967), that the “freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”

This is, of course, an unusual decision for a state attorney general to make.  With a divided executive (previously discussed at Law Dork here), however, the Governor could still file an answer denying the claims.  Also, a state officeholder always does have an obligation to the federal Constitution, as well as his or her state’s constitution.

Now, whether, in this case, there is a legitimate federal underpinning for Brown’s position is questionable. It is, of course, a strong stand for equality (and one that we certainly feel good about after Obama’s filing), but let’s recall that Brown was pretty well smacked around by the California Supreme Court for his actions opposing the validity of Prop 8 in those challenges.

Regardless, the timing is sure to get Brown some headlines.  And, should he decide to challenge Gavin Newsom for governor, he’ll be thrilled with the coverage.

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