California Attorney General Jerry Brown, who has asked that the courts overturn Proposition 8, writes in the Huffington Post on the eve of the hearing.

The case touches the heart of our democracy and poses a profound question: can a bare majority of voters strip away an inalienable right through the initiative process? If so, what possible meaning does the word inalienable have?

…

Fundamental rights in California are recognized and protected by our constitution, which declares in Article I, Section 1 that “all people are by nature free and independent and have inalienable rights” and “among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”

These fundamental premises of a free people were declared when the constitution was first adopted. The initiative process came much later in 1911, when the immediate concern was to give the people power over the railroads, which were seen as having a stranglehold over the legislature. In creating this initiative process, there was no discussion or any evidence of intent to permit a simple majority of voters to take away the pre-existing rights deemed inalienable by Article I.

In 2008, the California Supreme Court was faced with the question of how the values enshrined in Article I apply to same sex marriages. It concluded that the concept of “liberty” includes the right to form the enduring relationship called marriage and that no compelling interest justified denying this right to same sex couples. Just like the right to be free from discrimination in housing, citizens have the right to be free from discrimination in state-granted marriage licenses.

With this Supreme Court decision, same sex marriage has the protection of Article 1 and, like other inalienable rights, cannot be taken away by a popular vote — whether it be 52% (as was the case in Proposition 8 ) or 65% (as it was for Proposition 14).

I believe, therefore, the Court must conclude as I have that Proposition 8 is unconstitutional and should be stricken.

Oral arguments begin at 9am PST on Thursday, March 5, and can be viewed online here.

Meanwhile Catholics for the Common Good are urging their flock to pray and fast to uphold Proposition 8.

Vigils supporting marriage equality will be taking place throughout the state tonight. Visit www.eveofjustice.com for more information.

The Courage Campaign has released a moving new video called “Fidelity”, asking the California Supreme Court not to divorce the 18,000 same-sex couples who were married before the passage of Proposition 8. Leading the effort to invalidate those marriages is Pepperdine University’s Ken Starr. Yes, the same Ken Starr whose investigation eventually led to the impeachment of President Bill Clinton.

Visit the Courage Campaign and send a message to the California Supreme Court asking them to invalidate Prop 8 and reject Ken Starr’s case.

The fine folks behind Proposition 8 have filed a brief today asking the California Supreme Court to nullify the estimated 18,000 same-sex marriages that took place before the ban went into affect on November 5.

“Proposition 8’s brevity is matched by its clarity. There are no conditional clauses, exceptions, exemptions or exclusions,” reads the brief co-written by Pepperdine University law school dean Kenneth Starr, the former independent counsel who investigated President Bill Clinton.

Proposition 8’s supporters assert that the Supreme Court lacks the authority or historical precedent to throw out the amendment.

“For this court to rule otherwise would be to tear asunder a lavish body of jurisprudence,” the court papers state. “That body of decisional law commands judges — as servants of the people — to bow to the will of those whom they serve — even if the substantive result of what people have wrought in constitution-amending is deemed unenlightened.”

Attorney General Jerry Brown, will also submit a counter brief maintaining the gay marriage ban cannot be applied retroactively.

Complete story here…

First Rick Warren and now this. What a merry fucking Christmas this is.

UPDATE: Earlier today, Attorney General Jerry Brown issues this release recommending the court to review Prop 8 and that an “immediate stay” should not be granted.

Attorney General Brown Urges California Supreme Court to Review Constitutionality of Proposition 8

FOR IMMEDIATE RELEASE
November 17, 2008
Attorney General Brown Urges California Supreme Court to Review Constitutionality of Proposition 8

SACRAMENTO—California Attorney General Edmund G. Brown Jr. today urged the California Supreme Court to accept review of the legal challenges to Proposition 8 and for this matter of widespread concern to be “promptly resolved.”

“The profound importance of the issues raised by Proposition 8 warrants that this matter be reviewed and promptly resolved by the California Supreme Court.” Attorney General Brown said.

In a set of briefs filed with the Court today, Attorney General Brown wrote that: “review by this Court is necessary to ensure uniformity of decision, finality and certainty for the citizens of California. The constitutionality of the change created by Proposition 8 impacts whether same-sex marriages may issue in California and whether same-sex marriages from other states will be recognized here. There is significant public interest in prompt resolution of the legality of Proposition 8. The Court can provide certainty and finality in this matter.”

Typically, matters are brought before lower courts before the Supreme Court hears the case. However, petitioners have asked the Supreme Court to accept the review directly to bring an early resolution to the matter.

Attorney General Brown opposes a stay on Proposition 8, arguing that it would increase uncertainty related to marriages performed in California. The Attorney General’s brief states that “the public interest would be best served not by issuing a temporary stay, but by an expedited resolution of the important issues raised by the petitions.”

Attorney General Brown continues to believe that same-sex marriages performed between June 17 and November 4, 2008 remain valid and will be upheld by the Court.