The California Supreme Court on Attorney General Jerry Brown's Arguments Against Prop. 8:

I again think the court's reasoning is quite correct (emphasis in original, some paragraph breaks added):

In his briefing before this court, the Attorney General agrees with our conclusions that Proposition 8 constitutes a constitutional amendment rather than a constitutional revision, and that the measure does not violate the separation of powers doctrine. The Attorney General, however, advances a novel, alternative theory under which he claims Proposition 8 should be held invalid. Relying largely on the circumstance that article I, section 1 of the California Constitution characterizes certain rights as "inalienable," the Attorney General maintains that "Proposition 8 should be invalidated even if it is deemed to amend the Constitution because it abrogates fundamental rights protected by article I without a compelling interest." ...

[But] the "inalienable" nature of a constitutional right never has been understood to preclude the adoption of a constitutional amendment that limits or restricts the scope or application of such a right. As noted above, from the beginnings of our state constitutional history, the right of the people "to alter or reform" the provisions of the Constitution itself has been understood to constitute one of the fundamental rights to which article I, section 1 refers, and California's 1849 Constitution enshrined this right as an integral part of the original Declaration of Rights in former article I, section 2, which provided: "All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people; and they have the right to alter or reform the same, whenever the public good may require it."

Indeed, the drafters of the 1849 Constitution, in their message submitting the proposed Constitution to the people of California, expressly described the people's right to alter or reform the Constitution as an "inalienable right." In like manner, when the people's authority to propose and adopt constitutional amendments by initiative was added to the California Constitution in 1911, the constitutional provision spoke of the initiative "not as a right granted the people, but as a power reserved by them."

Accordingly, there is no basis for suggesting that the inalienable rights set forth in article I, section 1, and the other provisions of the Declaration of Rights, are of a higher order than -- and thus exempt from -- the people's right to "alter or reform" the Constitution through either the legislative or the initiative constitutional amendment process. Indeed, a review of the current version of the constitutional provisions contained within article I's Declaration of Rights demonstrates that modification of such rights through the amendment process has occurred throughout our state's history.

In urging this court to confer upon the "inalienable rights" terminology of article I, section 1 a much more sweeping and far reaching meaning than it traditionally has borne, the Attorney General cites selected excerpts from a number of mid-19th-century opinions that gave voice to the natural-rights jurisprudence that was common in that era. As pointed out in the response filed by interveners, however, the expansive natural-rights jurisprudence of that time long has been discredited and, moreover, even the cited jurists never suggested that courts possess the authority to invalidate an explicit constitutional amendment, adopted through a constitutionally prescribed procedure, on the ground that the amendment is inconsistent with the scope of a right previously embodied in the Constitution. As discussed at length above, on numerous occasions in the past this court's interpretation of the fundamental constitutional protections accorded by the state Constitution to the "life and liberty" of those accused of crime has been modified by constitutional amendments proposed and adopted through the initiative process, and the constitutional validity of those amendments repeatedly has been sustained in our prior decisions. In short, the Attorney General's position finds no support in the governing California authorities.

In defending his argument, the Attorney General emphasizes that he "is duty bound to uphold the whole of the Constitution, not only the People's reservation of the initiative power, but also the People's expression of their will in the Constitution's Declaration of Rights." When we examine the entirety of the California Constitution, however, we find nothing that exempts article I, section 1 -- or any other section of the Constitution -- from the amendment process set forth in article XVIII.... [W]e would exceed the well-established and time-honored limits of the judicial role were we to take it upon ourselves to fashion such a restriction upon the present and future right of the people to determine the content of the Constitution that governs our state.

[Footnote: As one legal commentator has explained: "To empower the courts not simply to review the procedures whereby amendments were adopted but also to void amendments on the basis of their substantive content would surely threaten the notion of a government founded on the consent of the governed." (Viles, The Case Against Implicit Limits on the Constitutional Amending Process in Responding to Imperfection (Levinson edit.1995) 191, 198; see also Tribe, A Constitution We Are Amending: In Defense of a Restrained Judicial Role (1983) 97 Harv. L.Rev. 433, 442 ["allowing the judiciary to pass on the merits of constitutional amendments would unequivocally subordinate the amendment process to the legal system it is intended to override and would thus gravely threaten the integrity of the entire structure"].)]

CLS (mail) (www):
Do I read it correctly that the Attorney General, a Democrat, appealed to the concepts of natural rights; but that Republicans said the idea of natural rights "has been discredited?"
5.26.2009 3:24pm
Dave N (mail):
I found it ironic that in 1977, the California Legislature passed and, presumably, then Governor Jerry Brown signed, a bill that stated, in part, "Marriage is a personal relation arising out of a civil contract between a man and a woman," while current Attorney General Jerry Brown argued Proposition 8 was a "revision."

Out of fairness, Governor Brown might have vetoed that law and the Legislature overrode his veto, but the California Supreme Court's decision does not indicate this.

If there was no veto, however, then there are only two logical explantions:

1) Governor Brown abrogated his duty to follow the California Constitution because surely he should have realized that, even without the Marriage Cases, SSM sex marriage was required under the California Constitution.

2) Governor Brown did not see a Constitutional problem with the 1977 legislation because there was none, demonstrating that Attorney General Brown's argument about "revision" was nothing more than politically pandering.

Jerry Brown's dueling positions demonstrate my problem with judicially created SSM: the judiciary is creating a "right" heretofor completely undiscovered in human history prior to the last twenty years or so.

If California or any other state wants to use the democratic process to legalize SSM, I have no problem with that--just don't ask the courts to usurp the legislative process.
5.26.2009 3:25pm
Brian the Guest (mail):
So according to the reasoning of the CA Supreme Court, the people could pass a proposition that would outlaw interfaith or interracial marriage, and that would be OK.
5.26.2009 4:26pm
Dan Weber (www):
So according to the reasoning of the CA Supreme Court, the people could pass a proposition that would outlaw interfaith or interracial marriage, and that would be OK.
It may or may not be "OK." But it seems that those amendments would follow the laws that California has set up. (Although interracial marriage would lose instantly in a Federal court, cf Loving.)

I think their amendment process sucks, fwiw.
5.26.2009 4:39pm
Stephen C. Carlson (www):
1977 is 22 years ago. People change.
5.26.2009 5:13pm
wt (www):
1977 is more than 22 years ago. Like, at least 25 years ago, I'd say.
5.26.2009 5:21pm
James Moylan (mail) (www):
1977 is 22 years ago. People change.

1977 is more than 22 years ago. Like, at least 25 years ago, I'd say.


ooooo let me have a go.

I guess, ummmm, 30 years ago! (do I get a cookie?)
5.26.2009 5:34pm
what's the response to this:

"The California Constitution states very clearly that "All political power is inherent in the people."

Kenneth Star, during his Proposition 8 oral arguments, used that statement to enshrine the voters' absolute right to amend the constitution regardless of the wisdom of the amendment.

Kenneth Star is wrong. The political power is inherent in ALL the people. That means that even the minority has inherent political power. What Prop 8 and any amendment to diminish the rights of a political minority attempt to do is restrict the inherent political power of that minority. If the majority wanted to take the voting rights away from the minority, as Kenneth Star proffered, they can. That, to me, strikes against the very provision Kenneth Star rested his argument against. How can political power be inherent, if it can be taken away? "
5.26.2009 5:46pm
Stephen C. Carlson (www):
It's still 1999, right?
5.26.2009 5:59pm
KeithK (mail):

So according to the reasoning of the CA Supreme Court, the people could pass a proposition that would outlaw interfaith or interracial marriage, and that would be OK.

Yes. Absolutely. As a matter of law anyway.

The people of California have the right to amend their Constitution so that it fits the will of the people, as expressed through the amendment procedures. This right doesn't guarantee that Constitutional changes will be "good". But whether a change is good or bad is a politcal one, not a legal one.

If you don't think that the procedures for amending the CA Constitution are fair or sufficiently respectful of the rights of the minority then the proper response ios to work to change the amendment process.
5.26.2009 6:00pm
Le Messurier (mail):
Stephen C. Carlson said:

It's still 1999, right?

Spot on! And at the end of the year your computer is going to flame out!
That said, I have a problem listening to people who opine and can't get the millennium changy thing into their head. Somehow it effects their credibility.
5.26.2009 7:10pm
Tracy W (mail):
What Prop 8 and any amendment to diminish the rights of a political minority attempt to do is restrict the inherent political power of that minority.

This doesn't make sense to me. How does taking away the right to marry restrict the inherent political power of that minority? Taking away from a political minority the right to vote, or the right to publish pamphlets, or the right to make donations to political parties, would restrict the inherent political power of that minority. But, if anything, I would say that taking away the right to marry would encourage the political power of a minority, by providing more members a reason to get involved in the political process, thus creating organisations that could be used in other ways to further the minority's interests.
5.27.2009 4:35am

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