Californian gay marriages may be nullified

20 Dec 2008

The sponsors of Proposition 8, which outlawed gay unions in California, asked the California Supreme Court yesterday to nullify the marriages of the estimated 18,000 same-sex couples who exchanged vows before voters approved the ballot initiative.

The 'Yes on 8' campaign filed a brief arguing that because the new law holds that only marriages between a man and a woman are recognised or valid in California, the state can no longer recognise the existing same-sex unions.

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

The campaign submitted the document in response to three lawsuits seeking to invalidate Proposition 8, the constitutional amendment adopted last month that overruled the court's decision in May that had legalised gay marriage in the nation's most populous state.

Both California Attorney General Jerry Brown and gay rights groups maintain that the gay marriage ban may not be applied retroactively.

Also Friday, Mr Brown announced that he had changed his position on the state's new same-sex marriage ban and was urging the state Supreme Court to void Proposition 8.

In a dramatic reversal, Mr Brown filed a legal brief saying the measure that amended the California Constitution to limit marriage to a man and a woman is itself unconstitutional because it deprives a minority group of a fundamental right. Earlier, Mr Brown had said he would defend the ballot measure against legal challenges from gay marriage supporters.

But Mr Brown said he reached a different conclusion after studying the state Constitution.

"It became evident that the Article 1 provision guaranteeing basic liberty, which includes the right to marry, took precedence over the initiative," he said in an interview on Friday night. "Based on my duty to defend the law and the entire Constitution, I concluded the court should protect the right to marry even in the face of the 52% vote."

Mr Brown, who served as governor from 1975 to 1983, is considering seeking the office again in 2010. After California voters passed Proposition 8 on November 4, Mr Brown said he personally voted against it but would fight to uphold it as the state's top lawyer.

Mr Starr's co-counsel Andrew Pugno said Mr Brown's decision to challenge the voter-approved measure and the argument advanced by the attorney general was "totally unprecedented".

"His legal duty as attorney general of the state is to defend initiatives passed by the voters," he said.

Mr Brown submitted his brief in one of the three legal challenges to Proposition 8 brought by same-sex marriage supporters. The measure, a constitutional amendment that passed with 52% of the vote, overruled the state Supreme Court decision last spring that briefly legalised gay marriage in the nation's most populous state.

The Supreme Court could hear arguments in the litigation as soon as March.

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."

Taken from The Irish Examiner