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.

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.