Jerry Brown had originally pledged to defend Prop. 8 in accordance with his constitutional duty. However, his 111-page brief is asking the court to strike down the measure for reasons not even suggested by gay activists who filed suit. In essence, Brown argues that the state constitution's general guarantee of "the inalienable right of liberty" supersedes all other aspects of the state constitution, including Prop. 8.
In a revealing passage, Brown's brief states, "While Respondent [the Attorney General] does not suggest that the Framers contemplated that liberty interests included a right to marry that extended to same-sex couples, the scope of liberty interests evolves over time as determined by the Supreme Court." At the same time, Brown agreed with Prop. 8 supporters that the arguments actually made by the plaintiffs - that Prop. 8 is a "revision" of the state constitution and violates the "separation of powers" doctrine - have no basis in case law.
"Astounding," commented Brad Dacus, president of Pacific Justice Institute. "Just when you hope Attorney General Brown might even half-heartedly fulfill his constitutional duty to defend Prop. 8, he judo-flips the voters. His brief actually calls those who voted for Prop. 8 the "tyranny of the majority." With the state's chief law enforcement officer becoming a law unto himself, I believe we have a constitutional crisis in our state." PJI was one of the first to file briefs opposing efforts to stop enforcement of Prop. 8, and PJI is currently drafting an amicus brief on the merits of the case which will be filed with the court in mid-January.
PJI staff attorney Karen Milam, who directs the Southern California office, noted, "There is good reason why Jerry Brown's argument was never raised by the parties filing suit against Prop. 8: it's outlandish and has no basis in the law. The people of California deserve better."