California Attorney General Jerry Brown Asks Court to Overturn Prop 8

Supporters were dismayed when Brown reversed his position on banning same-sex marriage.

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SAN FRANCISCO—Supporters of Proposition 8, the California initiative that eliminated the right of same-sex couples to marry last month, reacted with surprise and dismay this weekend to the announcement by the state's attorney general that he had reversed his position and would ask California's high court to invalidate the measure.

Jerry Brown, the state's attorney general—and a leading candidate to replace Arnold Schwarzenegger as governor in two years—filed papers on Friday asking the state Supreme Court to overturn Proposition 8, which amends the state's Constitution to define marriage as only between a man and a woman.

The decision is a major reversal for Brown, whose office argued against same-sex marriage in the spring, only to see the Supreme Court find a law banning gay marriage unconstitutional. After last month's election, in which 52 percent of voters effectively reinstated that law by supporting Proposition 8, Brown again said he would support the will of the people.

In a brief filed on Friday, Brown abruptly changed sides, saying he had looked closely at state precedent and had concluded that he couldn't defend the new law. "Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification," Brown's brief says. The state Supreme Court, in its decision earlier this year, found that gay couples enjoy the same fundamental right to marry that straight people do.

Brown's brief acknowledged that the state is facing a constitutional crisis. Every branch of government—including the governor, a majority of state legislators, and the state's highest court—approves the rights of same-sex couples to marry, while a slim majority of voters have eliminated those rights. "We have a conflict between the amendment power (through voter initiatives) and the duty of the Supreme Court to protect minorities and safeguard liberty," Brown said.

Supporters of Proposition 8 did not try to hide their irritation after losing one of their strongest political allies. "It is disappointing that the attorney general has refused to defend the vote of the people as the law instructs him to do," said Andrew Pugno, general counsel of Protect Marriage, one of the groups that spearheaded the initiative. "It will take some time to digest this new and unusual legal argument he has created. 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 8's validity."

The sponsors of Proposition 8 have asked the court to invalidate the marriages of the more than 18,000 same-sex couples who were married before the election last month. They also added some extra wattage to their legal team on Friday when they named Kenneth Starr, the former U.S. solicitor general who led the investigation of President Bill Clinton's affair with Monica Lewinsky, as their lead counsel in the case.

The California Supreme Court could hear arguments on Proposition 8 as early as March.