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The San Francisco Chronicle

Jerry Brown Seeks Legality of Prop. 8

Bob Egelko

California Attorney General Jerry Brown is probing the legality of Proposition 8. (Rich Pedroncelli / Associated Press)

The likelihood of a final California Supreme Court showdown over
same-sex marriage increased dramatically Monday when Attorney General
Jerry Brown and the pro-Proposition 8 campaign urged the justices to
decide whether the voter-approved ballot measure is constitutional.

Both Brown, the state government's top lawyer, and the Protect
Marriage campaign organization plan to defend Prop. 8, which would
write a ban on same-sex marriage into the state Constitution. In
separate filings Monday, the liberal attorney general and the
conservative sponsors of the initiative gave similar reasons for asking
the court to review lawsuits filed by the measure's opponents.

"There is significant public interest in prompt resolution of the
legality of Proposition 8. This court can provide certainty and
finality in this matter," Deputy Attorney General Mark Benington said
in court papers.

Andrew Pugno, lawyer for Protect Marriage, said, "The people have a
right to know as quickly as possible the status of marriage under the
California Constitution." He said he was confident that the court will
uphold Prop. 8.

However, the Campaign for California Families, another conservative
religious organization that supported the measure, asked the court to
dismiss the suits without a hearing. The group's lawyer said
overturning Prop. 8 "would wreak havoc on the democratic process."

The court could decide at its weekly conference Wednesday whether to
accept the suits for review and whether to issue a stay that would
block enforcement of Prop. 8 until a ruling is made. A stay would
restore authority for gay and lesbian couples to marry, although those
marriages - like an estimated 18,000 same-sex weddings performed before
the Nov. 4 election - would have an uncertain status until the court
cleared up Prop. 8's legality and scope.

Benington argued against a stay, saying any marriages performed in
the interim period would be questioned if the court upheld Prop. 8.
Brown has promised to defend the validity of the pre-Nov. 4 marriages.

The number of suits challenging Prop. 8 grew to six Monday with
filings by women's-rights groups and religious organizations led by the
California Council of Churches. Two groups of same-sex couples and
local governments led by the city of San Francisco sued Nov. 5 and were
joined Friday by civil rights organizations, which said the initiative
would set a precedent for eliminating the rights of any minority by
popular vote.

All the lawsuits argue that Prop. 8, a state constitutional
amendment, violates other provisions of California's Constitution by
taking rights away from a historically persecuted minority group and
stripping judges of their power to protect that group.

Prop. 8, approved by a 52 percent majority, would overturn the
court's May 15 ruling that gave gays and lesbians a constitutional
right to marry in California.

The central claim in most of the suits is that Prop. 8 would make
such a fundamental change to individual rights and judicial
responsibilities that it would amount to a revision of the state
Constitution and not merely an amendment. While a constitutional
amendment can qualify for the ballot with 694,354 signatures of
registered voters, a revision requires a two-thirds legislative vote to
reach the ballot.

Opponents of past initiatives have made similar arguments, usually
without success. The court upheld the Proposition 13 property tax cut
as well as measures reinstating the death penalty, and restricting
defendants' rights in criminal cases, ruling that each was an amendment
rather than a revision.

But the court struck down provisions in a 1990 crime initiative that
would have limited defendants in California to rights recognized by the
U.S. Supreme Court, calling it an attack on state courts' authority to
exercise their own judgment under the California Constitution.

In 1948, the court removed from the ballot an initiative that would
have made wholesale constitutional changes on subjects ranging from
pensions to oleomargarine, ruling that it was an invalid revision.

Brown's filing Monday steered clear of the issue, which he
presumably will address if the court takes up the cases. The Campaign
for California Families, in its brief seeking dismissal of the suits,
said Prop. 8 is far less sweeping than the measures the court has

The Nov. 4 measure "does not alter the balance of power between the
branches of government, nor does it undermine or eliminate fundamental
rights," said Mary McAlister, a lawyer for the organization.

All Prop. 8 does, she said, is to enshrine in the state's
Constitution "the centuries-old definition of a universal social

The lead case is Strauss vs. Horton, S168047.


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