Gross Dereliction of Duty (California Attorney General Jerry "Moonbeam" Brown's Prop 8 brief)

National Review Online ^ | December 23, 2008 | The Editors

[neverdem]

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December 23, 2008, 4:00 a.m.

Gross Dereliction of Duty
By the Editors

As attorney general of California, Jerry Brown has a duty to defend the state and its laws in court. That duty requires him to offer the best grounds in defense of any law that may reasonably be defended. In a brief he filed last Friday in the case challenging Proposition 8 — the ballot measure that amended California’s constitution to ban same-sex marriage — Brown grossly violated that duty.

On Election Day, California voters approved Proposition 8. Opponents of Proposition 8 then rushed to court to invalidate it on the novel theory that it was a “revision” to, rather than an “amendment” of, the state constitution, and that this “revision” could not be accomplished through the ballot-initiative process.

The brief that Brown filed for the state last Friday properly rejects the claim that Proposition 8 amounts to a revision rather than an amendment. But instead of presenting the best grounds in defense of the legality of Proposition 8, Brown’s brief offers the crackpot theory — beyond anything the opponents of Proposition 8 have argued, and beyond the scope of the briefing that the supreme court invited — that the constitutional amendment achieved by Proposition 8 is itself unconstitutional.

Here is how Brown summarizes his argument in his press release: “The amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification.” Brown invents this argument out of whole cloth: Further, how is it that a “right” to same-sex marriage that the state supreme court invented just months ago, and that even Brown’s brief concedes was not something “the Framers [of the state constitution] contemplated,” should suddenly be deemed a “fundamental” constitutional right?

Brown’s answer is judicial activism on stilts: Any right that the state supreme court has found to be protected as (in Brown’s phrase) “part of fundamental human liberty” under the state constitution is ipso facto a “fundamental” right. And, further, the fact that the court found such a right means there is no “compelling justification” for its abrogation. In Brown’s theory, there is no popular check on the judicial-activist invention of rights.

This is not the first time Brown has indulged his policy preference for same-sex marriage. In the marriage case that led to the supreme court’s creation of a right to same-sex marriage, Brown expressly repudiated the procreation-based argument for traditional marriage that had prevailed in some liberal courts. And he changed the ballot title for Proposition 8 from “Limit on Marriage. Constitutional Amendment” to “Eliminates Right of Same-Sex Couples to Marry Initiative. Constitutional Amendment” — a move seemingly intended to cost the initiative votes.

Brown’s brief is both a violation of his duty and professional malpractice. It’s good to see that some liberal law professors in California have already criticized Brown: One says that Brown’s argument “turns constitutional law on its head,” and another calls his position “extraordinary.” But Brown’s betrayal of the public trust deserves broader condemnation from political and legal leaders in California, including governor Arnold Schwarzenegger, irrespective of their own positions on marriage.

[sinanju]

Is it a fact I gather that Attorney General Moonbeam is making sure the law is not enforce on those radical gays involved in violent stunts and systematic harrassment of Prop. 8 donors?

[rockinqsranch]

This Looney (”Moonbeam”) dreams of becoming Governor of California once again. We must ensure he does not realize his dream.

Wondering what we are going to have to run against him.

[neverdem]

Is it a fact I gather that Attorney General Moonbeam is making sure the law is not enforce on those radical gays involved in violent stunts and systematic harrassment of Prop. 8 donors?

I don't know what Moonbeam is doing besides filing an activist brief.

[gidget7]

Why wonder, you have a top notch GOP Congressman who recently retired. Draft him!! (see tagline)

[goldstategop]

I submit I've never heard a state Attorney General declare a constitution unconstitutional before - or that the people of a state are not allowed to amend their fundamental law if it goes against the elite's wishes. For advancing a crackpot theory, California's Attorney General Jerry Brown reached a new low in gross turpitude. Can he seriously argue that California's state constitution is now unconstitutional because the voters added a provision with which he disagrees? Apparently, yes! Which is a shame, since the Attorney General is obligated to defend the laws, irrespective of his personal position on them and here Brown felt it more important to pay his political IOUs to the radical gay lobby than to defend the will of California's voters before the state Supreme Court. That says it all.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

[WilliamofCarmichael]

Nothing new. The Davis Administration betrayed the Prop 187 voters in a similar manner.

It was argued that Brown did not meet the qualifications for Attorney General. To wit, some pointed out "that a person is not qualified to serve as state Attorney General 'unless he shall have been admitted to practice before the Supreme Court of the state for a period of at least five years immediately preceding his election or appointment to such office.'"

I don't remember his law license being suspended but Jerry Brown had only been so qualified for about three years because of it, some argued.

But hey! Today rules don't matter none.

Jerry Helmsley Brown says: "We don't follow rules. Only the little people have to follow rules."

(Leona "Queen of Mean" Helmsley boasted "We don't pay taxes. Only the little people pay taxes" according to testimony from disgruntled employees who said she terrorized the help at her homes and hotels. Mrs. Helmsley denied saying it. Regardless she went to prison for tax fraud.)

[goldstategop]

That's right. The Democrats have just demonstrated a willingness to flout what Prop. 13 says on tax increases. We're on the road to a government of men and not of laws.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

[goldstategop]

The other point is that if Jerry Brown is correct, then Prop. 17, which insulated the death penalty from constitutional challenge, is also unconstitutional. Not even the California Supreme Court went so far as to say the voters could not overrule it on a life and death matter. If they buy it, it will be a new height in judicial activism, since the constitution will no longer control any branch of government. And the people will effectively cease to be the source of its power and legitimacy. That's a novel reading of American law, that taken to its logical conclusion sets us down the road towards dictatorship.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

[rockinqsranch]

I would vote for Duncan Hunter should he decide to run for the position of Governor of California. If a man has to be drafted, I’d be skeptical of his enthusiasm.

[pepsionice]

Only to point this out...with so much incompetence of Wall Street bankers and financial wizards who attended Harvard...Jerry Brown went to Yale Law School, which I would put into the same bucket as admitting that you went to Harvard.

I have strong doubts that he has the legal skills that he claims. He’s mostly a pretender...with a TV-acting ability like Perry Mason, and not much more.

So the state, to include non-gays (as we must remind the state population that a significant number of non-gays do exist in California)....is stuck with this guy who must act as its chief legal counsel. Its amusing to watch this entire act...kinda like Jerry Lewis playing Matlock.

[SpaceBar]

Propositions are reviewed to see if they pass Constitutional muster before they ever even get on a ballot. Brown is grasping at straws.

[WilliamofCarmichael]

Thanks for the additional examples!

RE: "down the road towards dictatorship"

Bad? Depends upon the nature of the dictatorship. We are virtually under one now. Bad!

Every two-hundred-year-old republic is entitled to at least one patriot dictator.

IMO it may well take that to restore our Constitution. Good!

[PogySailor]

We are getting fairly close to an oligarchy (If we haven't already arrived). Under Obama’s “rule” it will accelerate. Congress and state governments have ceded much power to the judicial so they can ignore the will of the people by claiming that “the courts have spoken”.

[668 - Neighbor of the Beast]

But, but, they WANT it!!!

[fwdude]

I've said it before, but I know someone has some dirt on Brown. He's being extorted.

[fwdude]

Yes, Hunter for Governor - then President.

[NoRedTape]

Yes! Duncan Hunter. I’d vote for him in nanosecond.

[gidget7]

LOL I didn't mean literally “draft” him, more along the lines of writing letters and asking him to. He would be great for California!! Were he to see interest among constituents, he wouldn't need to be drafted. What I know of Congressman Hunter, he would see it as his duty.

[HondaCRF450]

"Moonbeam" loved the idea of prop 8 because he thought it would loose.

Now, the voters have changed the constitution, so the only thing left is to have the CASC throw it out, from whence there is no appeal except to the US Supreme court, who will not touch it.

The voters decided they did not want to allow marriage to be perverted. When it does happen, we'll have to pretext any marriage with "he gay-married his friend's brother" or "she straight-married her friend's brother." Can't you feel the love?