A.G. McMaster (R-SC)

South Carolina Attorney General Henry McMaster “has spent three decades working for the people of South Carolina,” as his Web site tells us, and today he announced that he’s going to be one of the Republicans running to be the state’s next governor.

His opening ad is a back-and-forth of contradiction.

He begins by telling South Carolinians that “[s]o far, under Barack Obama, over 39,000 South Carolinians have lost their jobs” — with no mention of Gov. Sanford’s Republican office, which made a pre-scandal mission out of trying to refuse stimulus money, or the state’s Republican-led statehouse.

McMaster then quickly shifts, noting that he “stands tall for family values” but understands the distrust in government, borne of “too much dishonesty and too many scandals” — with no mention that South Carolina’s primary recent scandal involves its current Republican governor.

And, this is only, as the site proclaims, “Day 1.”

The Second Circuit’s Maloney case, a case in which Judge Sotomayor sat on the panel, held that prior Supreme Court precedent prevented the circuit from incorporating the right.  The Seventh Circuit, using language more appreciated by Republican senators, reached the same conclusion, and the Ninth Circuit reached the contrary conclusion.  One of the cases is expected by most to reach the Supreme Court.

Ohio A.G. Cordray

Ohio Attorney General Rich Cordray, a Democrat up for re-election in 2010, has laid down his marker on the side of incorporation.  He recently said in an interview:

The US Supreme Court confronted that issue two years ago in the Heller case and determined, I think correctly, that it is an individual right. But that case only involved the District of Columbia, so now there are further cases, as you probably know, that are coming up through the courts to determine whether that right will be incorporated against the states. There was a recent decision by the 2^nd Circuit in the Northeast, and the 7^th Circuit in the Midwest. And most recently in the 7^th Circuit case, which is being appealed to the United State Supreme Court, we joined a brief authored by the state of Texas arguing that this is an individual right which should be incorporated. That is maybe the most significant issue pending right now in the 2^nd Amendment area.

Good to know.

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.

Tonight, California Attorney General Jerry Brown filed a brief in support of the federal lawsuit seeking to overturn Proposition 8 and restore marriage equality to California.

In stark contrast to President Obama’s Justice Department filing a brief defending the discriminatory Defense of Marriage Act, California’s Attorney General Jerry Brown today filed a brief in support of a federal challenge to Proposition 8.  Equality California is extremely appreciative of the Attorney General’s continued leadership in opposition to Proposition 8 and in support of ending discrimination against lesbian, gay, bisexual and transgender (LGBT) Californians.

Wow.  The rest of the e-mail is below the jump.

* * * * *

Here you go:

Governor Schwarzenegger is expected to file his brief soon. We urge him to take the same principled stance and tell the Court that Prop. 8 violates the Constitution.

The time has come for all elected leaders to follow Jerry Brown’s example and stand up for equality for all Americans, regardless of sexual orientation or gender identity.

Equality California will continue our position of not endorsing or supporting any candidate for any level of public office who does not completely and unequivocally support total equality for our community.

In solidarity,

Geoff Kors
Executive Director
Equality California

Hundreds of Cuccinelli supporters brandished yellow flags of Revolutionary War origin, emblazoned with “Don’t Tread on Me” as he promised to be a conservative attorney general if elected, declaring himself pro-life, pro-2nd Amendment and pro-land ownership. “If you want an A.G. with a record of defending the Constitution as it was written, I’m your candidate,” he said.

Mmhmm. Cuccinelli beat out former Arlington School Board Chairman Dave Foster for the Republican nod.  On the Democratic side, Delegate Steve Shannon (Virginia’s lower chamber is called the House of Delegates) of Fairfax, is unopposed for the nomination, which officially will come following the June 9 primary.