California AG Jerry Brown: "Proposition 8 Violates the 14th Amendment"

[Hissyspit]

http://lawdork.wordpress.com/2009/06/13/ca-ag-brown-proposition-8-violates-the-14th-amendment

CA AG Brown: ‘Proposition 8 violates the 14th Amendment’
with one comment

California A.G. Jerry Brown

California Attorney General Jerry Brown tonight filed his answer (pdf) to Perry v. Schwarzenegger, the federal Defense of Marriage Act challenge brought by Ted Olson and David Boies. Brown takes a far different tack in this California DOMA challenge than did President Obama’s Justice Department in another California DOMA challenge, Smelt v. United States (discussed here).

Brown states:

The Attorney General of California is sworn to uphold the Constitution of the United States in addition to the Constitution of the State of California. Cal. Const., art. XX, § 3. The United States Constitution is the “supreme law of the land.” U.S. Const., art. VI, § 2; Cal. Const., art. III, § 1. Taking from same-sex couples the right to civil marriage that they had previously possessed under California’s Constitution cannot be squared with guarantees of the Fourteenth Amendment. Accordingly, the Attorney General answers the Complaint consistent with his duty to uphold the United States Constitution, as Attorney General Thomas C. Lynch did when he argued that Proposition 14, passed by the California voters in 1964, was incompatible with the Federal Constitution. Reitman v. Mulkey, 387 U.S. 369 (1967).

In answering the Complaint, Brown, a named defendant, must respond to each paragraph of the Complaint. In part, he states:

In response to paragraph 7 of the Complaint, the Attorney General admits that Proposition 8 denies same-sex couples the right to civil marriage in California, and that it therefore violates the Fourteenth Amendment to the United States Constitution.

Later:

In response to paragraph 20 of the Complaint, the Attorney General admits that sexual orientation is a characteristic that bears no relation to a person’s ability to perform or contribute to society and that the sexual orientation of gays and lesbians has been associated with a stigma of inferiority and second-class citizenship, manifested by the group’s history of legal and social disabilities (see In re Marriage Cases, 43 Cal.4th at 841).

- snip -

He goes on to admit that Proposition 8 results in both Due Process and Equal Protection violations:

In response to paragraph 39 of the Complaint, the Attorney General admits that, to the extent that Proposition 8 took from Plaintiffs their previously held fundamental right to marry, the measure violates the Due Process clause of the Fourteenth Amendment to the United States Constitution on its face; and that by denying civil marriage to gay and lesbian same-sex couples that it affords to heterosexual opposite-sex couples, the California Constitution denies gay and lesbian couples and their families the same dignity, respect, and stature afforded families headed by a married couple. See In re Marriage Cases, 43 Cal.4th at 846-47.

- snip -

Unlike the Obama DOJ Motion to Dismiss filed today in Smelt, the Brown Answer filed in Perry cites approvingly to Loving v. Virginia, on the 42nd anniversary of the ruling. Brown writes:

In response to paragraph 35 of the Complaint, the Attorney General admits that the United States Supreme Court found in Loving v. Virginia, 388 U.S. 1. 12 (1967), that the “freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”

This is, of course, an unusual decision for a state attorney general to make. With a divided executive (previously discussed at Law Dork here), however, the Governor could still file an answer denying the claims. Also, a state officeholder always does have an obligation to the federal Constitution, as well as his or her state’s constitution.

MORE

[QC]

1. OMG. He's breaking the law! He's as bad as Bush!!! n/t

[ThomCat]

5. "OMG, He Has No Choice! He Has To Defend The Law!"

:P

Apparently certain DUers know the job of a Government Attorney better than the California Attorney General. :eyes:

[QC]

8. Actually, it's much easier than that: just argue whatever makes Obama look good. n/t

[ThomCat]

11. Yup, even if they would argue the exact opposite when a republican

was in office. Anything they can imagine or make up to defend Obama suddenly becomes the absolute truth in their minds.

[QC]

13. Do you remember the scene in 1984 where a speaker is fiercely denouncing Eurasia

when someone comes up to the podium and hands him a note and he immediately begins screaming about Eastasia, without missing a beat?

I think of it often when I am here.

[Baikonour]

24. Spot on. n/t

[merh]

12. Why do you post such nonsense.

He is doing what he believes is his duty under the laws of his office. His position as Attorney General of the State of California is different than the assistant US Attorney employed by the DOJ.

I would love to have rational discussions on the issues, but too many here just want to post foolish snark.

Instead of celebrating the fact that a man with courage and the office, who respects the constitution, filed the response he filed, folks just post stupid words and sarcasm. Brown's response will get this to SCOTUS.

I think it is great that he filed this. It further supports my belief that this case has the chance to be the case that makes it to SCOTUS and will allow them to rule state laws against same sex marriages are unconstitutional.

[Occulus]

60. I'm only replying to you to pin this near the top

The OP was lacking in this regard, but it's too late for her/him to edit. It should have been included to begin with

:spank:

Per Findlaw:

Amendment XIV.

Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

I make no argument, but merely place the text of the Fourteenth near the top of the thread for the convenience of our readers.

We return you to your regularly scheduled programming.

[ruggerson]

2. Bbbbbut, Attorneys General are supposed to defend the law!!!

thank God Jerry Brown has guts and a conscience.

[Name removed]

9. Deleted message

Message removed by moderator. Click here to review the message board rules.

[merh]

16. The Attorney General for the State of California is not the same

as the Attorney General for the USoA and the assistant US attorneys. You do know that, don't you?

[ruggerson]

18. I'm so thoroughly disgusted with the apologists for bigotry here

that I don't think it's wise for me to discuss this. Maybe some other time.

[merh]

22. You are confused and you have allowed your confusion and your

emotions to get in the way of rational thought and discourse.

To post that the US Attorneys are the attorneys that defend the USA and the laws passed by congress is not to a bigoted post. It isn't anything more than posting the facts. Read this article.

Experts: DOJ required to defend DOMA
Washington Blade | June 13, 2009
http://www.congoo.com/news/2009June13/Experts-DOJ-required-defend-DOMA

Understanding the statutes that govern the Executive Offices of the federal government and the State Agencies of the states involved makes it easier to discuss the issues and understand the positioning, or rather, the posturing. Olson filed to get this matter before SCOTUS, the body that makes the final decision on the issue. Brown has said from day one he believes that DOMA is unconstitutional and now he gets to challenge it and help bring the lawful resolution to this very important civil rights issue.

[ruggerson]

25. they did not have to write the brief they wrote

and the legal basis underling the specifics of what they wrote could do great damage to a case that ultimately lands before the USSC. They just laid the groundwork for a rational basis test, which could make a sweeping decision for marriage equality MUCH more difficult down the road.

Don't lecture me about "emotions." I'm talking about the facts of the situation.

And, again, nothing against you personally, but this ain't the right time.

[merh]

35. The brief they wrote (one man wrote and signed) was the

recycled brief filed in the previously filed case by Smelt & Hammer. Smelt & Hammer (god bless them and their devotion - if you want to give some money they could use it as they have been paying legal bills for years and appear to be tapped out since they asked the court to waive fees) have been battling this since 2000. This is not the first filing of their challenges. It worked before, it would probably will work again because Smelt & Hammer don't have a very good case - their standing is weak.

Below are excerpts from an interview conducted with Harvard professor Laurence H. Tribe, who firmly believes DOMA is unconstitutional and would like to see it overturned, and yet is grateful that the DOJ filed a motion to dismiss the legal challenge posed by the ninth circuit court case, Smelt v. United States.

http://www.advocate.com/news_detail_ektid90000.asp

The case that has a shot is the case filed by Olson, Perry et al v. Schwarzenegger et al, and now that Brown has taken the position he has taken, it really has a shot.

[ThomCat]

28. Your link goes to a blurb, not to a whole article.

So there is no article there to read.

As for the blurb, it says that Most of the time they have to defend the laws. What are those exceptions and why couldn't this be one of them?

And why did they have to use bigoted arguments to defend this law? It's one thing to find some administrative rationale for a law, and another thing entirely to embrace bigotry wholesale. WHY are you are condoning that!

It seems to me that your constant defense of anything the administration does, no matter what it is, no matter how egregious it is, And worse, always glossing over things like support for gross bigotry in Every Single Case shows that you aren't the least bit interested in rational discourse. You're here to pick apart anyone who says anything bad about your hero because he can't possibly do anything wrong.

[merh]

34. They did not use bigoted argument.

They used legal arguments, they cited existing case law where SCOTUS upheld the laws of the the states regarding restrictions to marriage.

You tell me what exceptions. You tell me when the DOJ has ever refused to defend a lawsuit naming the USA as a defendant. You tell me when the DOJ has refused to defend the law passed by congress, when it has refused to do what by statute is was created to do.

I don't defend everything the administrations does.

I do object to the crap posted that is not factual and that is not based in reality. The smears for Obama and the childish name calling comes from the left, the right and the center. The right thinks he is too liberal and a socialist, the left thinks he is not progressive enough and the center thinks he is too liberal or too conservative based on the issue.

I don't approve of a everything this admin has done, I am anxious for them to do a whole lot more than they have done on plenty of issues.

The bigotry is your own and you are the one that has spent the day posting snark and settling for name calling and the easy "hits". Let me know when you really want to discuss an issue. Maybe you can start by finding me a case where the DOJ refused to defend the USA in a lawsuit.

That would be a start.

[ThomCat]

40. You're calling me a bigot?

For what, exactly?

Yes, that brief did use bigoted arguments. It compared our rights to incest, and to sex with underage children.

It dismissed the precedent of Loving vs Virginia. Two adults who were not allowed to marry back then isn't the same as two adults who aren't allowed to marry now. According to the DoJ the reason why that precedent doesn't apply is because we are same-gender couples! But somehow that isn't discriminating against us for being same-gender couples.

The brief explicitly said that we can't have equal rights because the state doesn't want to budget for them. My first comment about this is that a dollar amount can be fixed to any right that anyone has, and the state isn't complaining about the cost of anyone else's rights. This is a novel argument about rights.

One has to wonder what the total cost of rights are for each upper class white, hetersexual, non-disabled, christian male who presumably has maximum rights in our society. Let's do a comparison before the government decides that someone's rights are too expensive. If we started a whole new study of the economic distribution of rights based on demographic characteristics, how little is being spent on LGBT people right now, especially black or native american lesbians or transgendered people? That would really show the hypocrisy of the cost argument.

My second thought about the cost argument is that we pay disproportionately higher taxes that straight people because we can't get married. There is a Gay Penalty for gay couples at tax time. So if we have been paying more in taxes than straight couples, how can the government complain about the cost of giving us equal rights?

So, for all of these reasons, yes, that brief was definitely full of bigoted arguments. If you can't see the bigotry then you're wearing blinders. And for you to call me a bigot because I'm fighting for equal rights, well that's just more hypocrisy and projection.

[merh]

43. No, it is not arguing the cases because they involve incest or

sex with minors. They argue the cases because they deal with SCOTUS holding that the states can restrict marriages, that not everyone is entitled to get married to the person of their chosing.

That is how the legal system works. You support your argument by telling the court you are in how other courts have ruled on cases involving similar issues. And yes, when arguing for your client (here the DOJ is arguing for congress and the law it lawfully passed and was signed into law by the president), you try to argue that cases that are not favorable to your position don't apply. That is why they tried to argue Loving v. Virginia doesn't apply.

The cost argument is crap, lame beyond words and I would imagine it is part of the recycled argument from the Bush filings in the original Smelt v USA case and appeal. But, the courts do look at economic costs involved - it is sad, but it is something they consider. Imagine how the poor indigent criminal defendant feels when he is told it is a matter of economic justice that he be tried with a bunch of thugs, that his individual rights don't matter as much as the cost to try multiple cases.

There is plenty about the filing I don't like, I firmly believe that the DOMA is unconstitutional. But, that does not mean that I do not understand why the DOJ filed and their duty to file under the laws and their ethical duties to their client.

Our system of justice is an adversarial system, one side argues their position and what they deem is the law and the other side argues against that position and what they believe the law holds.

It isn't perfect and it can be very frustrating, but it is what it is.

[sandnsea]

49. The cost argument

is taken directly from the DOMA House Report, they argue a couple of other taxpayer cases, iirc, and then quote the report. That's part of the argument that was made when the law was passed, that's part of the argument in the case.

[merh]

52. Well, we both know that the house in 1996 was full of assholes.

Of course, their report if full of stupid reasoning.

[sandnsea]

53. There you go

People really ought to read it to see just how ugly it is. I posted it a couple of times. I'm sure you can guess how much interest it got.

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=5839425&mesg_id=5839425

[merh]

55. And you and I both know that it is a legitimate legal argument to

use the legislative history and record when defending a lawfully passed statute.

thanks for the link - I may read it tomorrow - I just hate to be outraged by those slimmy bastards 13 years later.

[ThomCat]

57. You two must be so happy.

"There is a bureaucratic excuse to cover the bigotry. We can ignore it now and pretend the administration is blameless. Yay!"

:eyes:

The administration can get away with anything as long as there are people willing to work so hard at looking the other way.

[merh]

59. See, I think it is ignorance of the masses that allows the abuses.

You don't even have a clue as to the role of the AG and the DOJ. Ignorance such as yours is what allowed bushco to commit so many crimes and to abuse the system as they did.

Not knowing how government works and bitching about it makes no sense to me.

[ThomCat]

62. I just replied to your thread about that, and

while you were being so condescending, correcting my supposed lack of knowledge, you got it wrong.

:rofl:

One of the primary and first duties of the AG was and still is to advise the president on matters of law.

And, once the DoJ was formed to aid the AG in his duties, the DoJ falls within the Executive Branch, so the AG is responsible for implementing the President's policies within the DoJ. So the AG does serve the President and answer to him.

This idea the AG is independent of the President is a convenient myth you are creating out of whole cloth right. :P

[merh]

64. That is the AG, He is an advisor, he is not bound to do his bidding.

As the head of the DOJ, he is bound to "handle the legal business of the United States. The Act gave the Department control over all criminal prosecutions and civil suits in which the United States had an interest."

That means they have to REPRESENT ALL OF THE USofA, that includes congress and the laws they pass.

The pathetic laughter you enjoy continues to prove how little you understand.

[ThomCat]

56. There is a big difference between using something as a justication for

the text of a law, and using it in a brief as justification for the legality and constitutionality of a law.

Given the low standard of scrutiny needed in this case maybe any justification, no matter how bad, could have been presented but it seems like the lawyer for the Obama administration would have done more than quote Republicans from the last administration. :(

Regardless, now that it has been introduced in a legal brief, it seems to be a novel justification for denying civil rights. If the courts accept the cost argument it could really undermine civil rights in a lot of bad ways. It would open up the idea of putting price tags on rights and forcing government to cost justify them.

What minority rights would survive a budget fight?

And why would any democrat sit back and support this?

[merh]

63. It became a "novel justification for denying civil rights" when Congress

used the reasoning to support the DOMA and when Clinton signed the bill into law.

A brief written by either side in a legal proceeding does not become law, it is not binding and it has no power, it does not become that "novel justification for denying civil rights". The brief is just one sides opinion, it is the court that decides the law.

[ThomCat]

67. Duh. The court will decide based on the arguments presented by the

two sides. The government's arguments are in that brief. So if the Government wins that case, that brief contains their winning arguments.

It would at that point become the novel justification because it was presented in court and accepted.

The DoJ could have presented any of dozens of arguments. The link I just posted above from Politico mentions specifically that they could have simply argued to dismiss, or argued standing, or made any number of arguments other than the ones they chose. But the chose specifically to make prejudicially loaded arguments, and they are responsible for having made that choice.

One of those choices was this Cost argument which hasn't been made in court before, and therefore hasn't been tested in court before. Regardless of what you seem to think, that makes it a very novel and dangerous argument. If the court accepts the cost argument it could be a very dangerous precedent.

[merh]

72. God help us - you truly do not understand how the justice system

works.

The court doesn't just say "oh my, I like the government's brief better than I like the Plaintiff's brief, I'm going to go with what they say."

The court reads the brief and the full cases cited, not just what the parties say the cases say. The court applies the facts to the law and the court even does its own research to make sure that no one omitted some case that is worthy of consideration.

And you are mistaken about the costs argument, it is not new. This case is not new. This case, the Smelt case, has been argued before. It was originally filed in 2000, it was tried and the district court reached a conclusion, made its decision and then that decision was appealed to the 9th circuit and in 2006 the 9th circuit ruled, remanding it back to the district court after making specific findings. This is not a new case. Smelt & Hammer refiled because they had remarried and they believe that being married cures the standing issue they had in 2006/2008.

Go read the links I have provided and try to understand the judicial process.

[ThomCat]

74. Again, Duh.

When each side submits their arguments it's assumed that it includes case law. It's assumed that the judge(s) are going to apply the law and may do their own research.

Again you throw in more insults. I've had enough.

[ThomCat]

65. A new post was just posted that you should see.

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=103x456175

It links to a blog at Politico that directly contradicts everything you have said. I thought I'd share it as an outside source that shows that your "facts" are just mistaken beliefs.

[merh]

69. That is not a new post, that has been posted before and

it has been proven that the cases cited are not what the authors purport them to be.

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=5833429&mesg_id=5838361

If you like, I could repost the explanation of the cases in this thread.

[AntiFascist]

80. I believe that the recent CASC ruling was bigoted, but I guess it depends on your point of view...

the only recent case law they could cite where an amendment was used to remove rights from a class of individuals had to do with the class of criminals. They were actually comparing the protected minority class of homosexuals to the class of criminals, never mind that there are exceptions to Equal Protection when it comes to criminals! When bigotry becomes enshrined into law then those who defend such laws are themselves bigoted.

[merh]

81. Lawrence removed the homosexuals from the

class of criminals, before then those who had sex that was deemed "unnatural" were breaking the law and faced jail time and fines.

The cases cited by the DOJ were dealing with state laws restricting marriage. My grandmother was 14 when she married my grandfather. He wasn't a criminal or a pedophile - back then it was normal in society for young girls to marry. Society evolved and the laws changed and SCOTUS held that the state laws restricting marriages and that laws which prevented adults from marrying children under 16 were not unconstitutional. Many cultures allow relatives to marry, it protects the bloodline and is not some considered a perverted practice.

[AntiFascist]

82. I was referring to the recent ruling upholding Prop 8...

the CA Supreme Court was being asked to decide whether removing fundamental rights from a protected class should only be possible through a revision to the state constitution, which requires a more thoughtful process than a mere amendment by initiative. The only case law they could refer to related to initiatives removing fundamental rights from the class of criminals, where the Supreme Court had previously ruled that this was legal. How difficult would it have been for them to instead disregard these previous rulings because the class of homosexuals should in no way, shape or form be compared to the unique class of criminal citizens, where it relates to rights and so forth? Why can't the Obama defenders get it through their thick skulls that these types of comparisons, now being made by the DOJ, are pissing us off?

[merh]

83. But considering homosexuals as a protected class is a good thing,

isn't it? I mean, Title IX cases fail because they are brought by citizens are that considered members of a protected class. Discrimination suits fail because the person bringing suit is not a member of a protected class. Is California the first state to recognize LGBT as a protected class?

[AntiFascist]

85. Yes, and the CASC was responsible for the suspect class decision in the CA marriage ruling...

that's one reason why it is so surprising to see them buckling under the pressure in the decision to uphold Prop 8. They were being asked to decide whether removing fundamental rights from a suspect class could be achieved by a simple majority of the People through an initiative. This was a very novel question for them to answer and they had very little to work with from previous case law, but this decision could have benefitted all protected minority groups, not just gays and lesbians, which is why there were so many amicus briefs filed in opposition to Prop 8. If the People felt strongly about banning gay marriage, they could have gone through the more thorough process of Revising the state constitution.

[merh]

86. Please correct me if I am wrong, but didn't they avoid the tough

issues and simply rule that the proposition process was a legitimate means to revise the state's constitution? They didn't change the protected class finding, did they?

[AntiFascist]

88. No, they did not change the protected class finding...

Prop 8 carves out a narrow exception to equal protection. From the majority opinion:

"Thus, except with respect to the designation of 'marriage,' any measure that treats individuals or couples differently on the basis of their sexual orientation continues to be constitutionally 'suspect' under the state equal protection clause and may be upheld only if the measure satisfies the very stringent strict-scrutiny standard of review that also applies to measures that discriminate on the basis of race, gender, or religion."

However, it is believed by many that this narrow exception should not have been allowed through a simple initiative. Justice Moreno's minority opinion seems to be more thoughtful on this issue:

"In my view, the aim of Proposition 8 and all similar initiative measures that seek to alter the California Constitution to deny a fundamental right to a group that has historically been subject to discrimination on the basis of a suspect classification, violates the essence of the equal protection clause of the California Constitution and fundamentally alters its scope and meaning.

"Such a change cannot be accomplished through the initiative process by a simple amendment to our Constitution enacted by a bare majority of the voters; it must be accomplished, if at all, by a constitutional revision to modify the equal protection clause to protect some, rather than all, similarly situated persons."

[AntiFascist]

89. You might also be interested in how they responded to Jerry Brown....

•"We will not mince words. The Attorney General is inviting this Court to declare a constitutional revolution. His extra-constitutional vision is one of unprecedented judicial hegemony, a sweeping power vested in the least-democratic branch that overrides the precious right of the people to determine how they will be governed." (Page 1.)


•"With all respect, the Attorney General has invented an entirely new theory, grounded in ringing principles of natural law and natural rights, but utterly without foundation in this Court's case law." (Page 1.)


•"The argument is not only unprecedented but contradicts the most basic understanding of the role of the judiciary in a constitutional democracy. This Court has never presumed to have the power to strike down - in the name of undefined inalienable or natural rights - constitutional amendments properly enacted by the people." (Page 3.)


•"The Attorney General's theory fails at every level because the people have the final word on what the California Constitution says and there is no higher legal authority within California to which the judiciary can appeal." (Page 4.)


•"The Attorney General does not cite a single California case suggesting that the judiciary has authority to strike down properly-enacted amendments to the Constitution for violating article I, section 1 or undefined notions of inalienable rights or natural justice. This Court's jurisprudence is devoid of anything approaching such a far-reaching principle." (Page 4.)


•"The Attorney General's theory would fundamentally alter the role of the California judiciary. ... It would, in brief, constitute the California judiciary as the supreme overseer of the people's use of their constitution-making power - a result patently contrary to popular sovereignty. The creation of such a judicial oligarchy would constitute a profound revision of the California Constitution." (Page 11.)


•"The practical result of the Attorney General's theory is that the people can never amend the Constitution to overrule judicial interpretations of inalienable rights." (Page 13.)

So my question is, what if the people, through a simple initiative, decided to eliminate Article 1 Section 1 of the California Constitution? Would the CASC respond: Since inalienable rights are so ill-defined, this would not necessarilly alter the government plan substantially, and why do we need to protect such quaint notions as liberty and the pursuit of happiness anyway? If the people decide that not everyone deserves to be happy, then they have that right, regardless of the equal protection clause.

[merh]

91. That's a good question.

And some argue that is what they did with Prop 8

If my religion says it is okay for same sex couples to marry and have their marriage blessed by the church as a sacrament, is Prop 8 violating Art 1, sec 4 of the CA.Const.?

CALIFORNIA CONSTITUTION ARTICLE 1 DECLARATION OF RIGHTS

SEC. 4. Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State. The Legislature shall make no law respecting an establishment of religion. A person is not incompetent to be a witness or juror because of his or her opinions on religious beliefs.

[AntiFascist]

92. Excellent point, here's Article 1 Section 1:

SECTION 1. All people are by nature free and independent and have
inalienable rights. Among these are enjoying and defending life and
liberty, acquiring, possessing, and protecting property, and pursuing
and obtaining safety, happiness, and privacy.

Apparently this is nothing more than decoration for the CA Constitution. It carries no legal meaning for the current CA Supreme Court since they would barely even argue its implications. It was somewhat amusing watching the oral arguments where several of the justices kept stumbling over the pronunciation of "inalienable".

[merh]

93. They were cowards.

They didn't want to deal with the true issues, I take it that CSC justices are elected.

[AntiFascist]

94. No, they are appointed by the governor and I believe there is some approval process...

they are also subject to "retention" elections every 12 years or so, and at the first general election after they are appointed. It just so happens that several will be up for retention in the next election, and a powerful right-wing group has been threatening them with recall if they failed to uphold Prop 8.

[merh]

97. Fear of recall and political opposition

that will make a coward take the easy way out every time.

[AntiFascist]

98. I'm also concerned about right-wing terrorism...

the threats that this group made could be open to interpretation. They could have tried to go the extra mile and make Prop 8 a true revision to the constitution, but instead they resort to making threats. These people are also cowards, and despicable.

[merh]

99. The fear of the right wing terrorism is legitimate.

Having had to face the terrorism of others because I have taken a stand and tried to protect the civil rights of others, I know what it is like to face the threats that come from those in the "mainstream", that don't fit the crazy militia man mold. It isn't easy, they are very covert and their attacks are faceless and stealth. That makes the attacks that much more frightening. The atmosphere is charged and things have gotten worse over the last 15 years, there is an awful undercurrent. You are right though, the terrorist are the cowards and despicable.

[merh]

36. I don't know what that link is not working. It must be how the

Washington Blade handles its online articles.

This is a repost of the article:

Experts: DOJ required to defend DOMA
White House calls for legislative repeal

Legal experts say a Justice Department motion to dismiss a federal case against the Defense of Marriage Act shouldn't come as a surprise because, with few exceptions, lawyers in the department are required to defend existing statutes.

Robert Raben, a former U.S. assistant attorney general for legislative affairs under President Clinton who's gay, said a motion to dismiss a case targeting a federal law isn't unusual because "the Department of Justice doesn't have standing to decide which statutes they will or won't defend."

"The statute sucks," Raben said. "It's disgusting. We've opposed it from day one. We'll continue to oppose it, but the Department of Justice is doing what the Department of Justice does, which is defend the statute."

Nan Hunter, a lesbian Georgetown University law professor, also said the Justice Department "almost always defends the constitutionality of federal statutes."

"When a federal statute is challenged as being unconstitutional, the policy of the Justice Department, with very few exceptions, is to defend the federal law, even if there's a new administration that doesn't agree with it," she said.

Raben said there are "tiny, tiny exceptions" to that rule "when the statute is otherwise unlawful," but added that the number of cases in which this exception has been applied are small and "you could put all of those in a thimble."

DOMA "doesn't even come close" to fitting under these exceptions, Raben said. Shin Inouye, a White House spokesperson, said the Justice Department "is defending the law on the books," as is generally done with existing statutes.

"The president has said he wants to see a legislative repeal of the Defense of Marriage Act because it prevents LGBT couples from being granted equal rights and benefits," he said. "However, until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system."

Federal lawyers are defending DOMA in Smelt v. the United States of America, which was filed in federal district court last year.

[ThomCat]

41. So, from that article, the reason they defend everything is just policy

not because they MUST, but because they chose to. There are a very few exceptions, and the reason there are only a very few is because they apparently don't bother to go against policy very often.

That says a whole lot about business as usual in the DoJ, unfortunately.

But it still doesn't mean that they had no choice but to defend Bigotry as so many people seem to think.

If Obama was "Fierce Advocate" for our rights, as he has claimed, and if the DoJ had any instructions from him at all in that regard, then they would at the very least have left out the bigoted arguments in their defense. And, possibly, they could have applied for one of those policy exemptions to not support this law.

[merh]

44. No, they must.

They are bound by statute to represent the US in litigation filed against it and they are bound to defend the laws until a court tells them said laws are unconstitutional.

Obama is not the head of the DOJ. When Holder appeared before congress for his confirmation hearing he promised them that he would uphold and defend the laws of the federal government and that he would defend the laws they pass. The Attorney General is not the lawyer for the president. He is the chief law enforcment officer for all of the USA.

Didn't you object to Bush politicizing the DOJ? Why do you want Obama to do the same thing? And do you think that every filing made by the DOJ should first be read and approved by Obama (or by Holder)? There are thousands of filings made in thousands of cases in the USofA every day.

Obama could fire Holder for not doing his bidding but the new hire would not be confirmed until he assured congress that he would defend all of the laws they pass.

[ThomCat]

54. What Statute? Link?

You're contradicting the article you linked to in the other post.

That article said it is policy, not statute. Did you read the article you linked to?

Arguing that Obama isn't the head of the DoJ is not going to fly. Holder works for Obama. Obama is the Chief Executive. Everything roles up to the oval office, and all policy decisions start with him. Holder doesn't make any big policy decisions unless they are consistent with the policy that comes down to him from Obama. That's the way Cabinet positions work.

You're reaching with the issue of Politicizing the DoJ. Nobody is saying that Obama should fire Republican Lawyers. Nobody is saying that the DoJ should target the republican party. So where you get the idea that I'm advocating the behavior we opposed under Bush is beyond me. :eyes:

Do you really think that straw man is going to work as a distraction from the fact that arguments are discussed and approved by the department in advance, and the language used in briefs are carefully controlled? Do you really think anyone is going to believe that this it ISN'T bigotry when the DoJ says that Loving vs Virginia can't apply to gay marriage only because gay marriage is somehow different and less than interracial marriage was?

You're making pronouncements that this and that isn't bigotry, but you're not explaining how or why it's not bigotry. You're just denying, and expecting that your denial is enough.

1. It's not enough. If you really believe that Loving vs Virginia doesn't apply, and that isn't bigotry, then explain why not.

2. If you think that it's okay to deny us marriage by using the comparison that adults can't marry kids, and you think that comparison is relevant and not bigoted, explain how. How is that not comparing us to pedophiles?

3. You don't like the cost argument either, but you seem to be dismissing it as "Oh well, so what?" A new and novel argument like this had to have been know and discussed in advance at the DoJ, so do you really think Holder would have approved this if it was inconsistent with Obama's policies? Or, if you think that Holder didn't approve it, do you think Holder would look the other way if an offensive policy like this was introduced this way?

[merh]

58. Stop expecting the DOJ to do Obama's bidding.

They are not supposed to be the law firm for the president.
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x5845168

The Judiciary Act of 1789, ch. 20, sec. 35, 1 Stat. 73, 92-93 (1789) created the Office of the Attorney General. Originally a one-person part-time position, the Attorney General was to be "learned in the law" with the duty "to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments." The workload quickly became too much for one person, necessitating the hiring of several assistants for the Attorney General. With an increasing amount of work to be done, private attorneys were retained to work on cases.

In 1870, after the post-Civil War increase in the amount of litigation involving the United States necessitated the very expensive retention of a large number of private attorneys to handle the workload, a concerned Congress passed the Act to Establish the Department of Justice, ch. 150, 16 Stat. 162 (1870) setting it up as "an executive department of the government of the United States" with the Attorney General as its head. Officially coming into existence on July 1, 1870, the Department of Justice, pursuant to the 1870 Act, was to handle the legal business of the United States. The Act gave the Department control over all criminal prosecutions and civil suits in which the United States had an interest. In addition, the Act gave the Attorney General and the Department control over federal law enforcement. To assist the Attorney General, the 1870 Act created the Office of the Solicitor General.

The 1870 Act is the foundation upon which the Department of Justice still rests. However, the structure of the Department of Justice has changed over the years, with the addition of the Deputy Attorneys General and the formation of the Divisions. Unchanged is the steadily increasing workload of the Department. It has become the world's largest law office and the central agency for enforcement of federal laws.

http://www.usdoj.gov/02organizations/

My explaining to you what you obviously don't understand is not agreeing with the contents of the brief. I say you obviously don't understand because you are clueless about the function of the AG and the DOJ and you think they are Obama's law firm.

I have said for years that Loving v. Virginia is controlling. That if SCOTUS is asked to rule on the laws that deny the right to marry to same sex couples, it too will rule that Loving v. Virginia does apply and is controlling.

I never said it was right to deny same sex couples the right to marry. Stop saying that I have. I have simply explained to you the role of the DOJ, in accordance with the statutes that authorize their existence and how the adversary system that is our justice system works. I'm sorry you didn't have better civics lessons.

The cases cited were not cited to compare same sex marriage to incest or marrying minors. They were cited because they were cases wherein SCOTUS held that the states had the right to pass laws to restrict marriage to certain persons, that not everyone has the right to marry the person of their choosing.

The cost argument is directly from the House Report on DOMA, to cite the legislative history and record to the court is legitimate legal argument. It is done to help the court understand the reasoning congress used when they passed the law.

[ThomCat]

61. Actually, one of his official duties is to advise the President

on matters of law and legal policy. And to head the Department of Justice, which means implementing the President's policies as Chief Executive Officer that apply to the Department of Justice. You did know that the DoJ falls within the Executive Branch, right?

You like to be so condescending as if the people who disagree with you don't know anything, but they you post really stupid shit.

[merh]

66. He is an advisor, he is not his flunky.

He wears another hat as the head of the DOJ, you really should try to read all that is provided to you.

The Department of Justice, pursuant to the 1870 Act, was to handle the legal business of the United States. The Act gave the Department control over all criminal prosecutions and civil suits in which the United States had an interest.

Here, read what an attorney for the federal government has to say, it may help you better understand things.

http://www.dailykos.com/storyonly/2009/6/12/741817/-Obama-on-DOMA:-He-IS-Keeping-A-Promise

[ThomCat]

68. So, first you argued that they Had No Choice, and were forced by

statute to argue that case. Now you point me to a lawyer who says that he thinks they did the right thing my choosing to argue the case.

You're changing the framing of this discussion, but that post supports my original contention that the DoJ Chose to defend that law.

This is taking it a step further and arguing whether or not it is a good thing to defend every law. But that is an entirely different argument than whether or not they were forced by statute to defend every law.

Do you see yet that you keep making up new arguments as you go along? You keep throwing out new arguments to see if one of them will stick.

Are we now arguing this new point now, about whether or not it's right or wrong to argue all cases? Or are we still arguing over whether or not they had no choice?

[merh]

70. You are really confused, it is obvious from your posts.

As a legal advisor, when asked by the president "what do you think of this" the lawyer says "this is what I think the law is" - He is not required to do anything more than to advise.

That is not his only duty. As the head of the DOJ, the AG wears the hat as the head of an agency that, by law, represents all of the USofA. His job is to defend the constititution and to enforce the laws passed by congress.

And you seem to not understand that the president is also bound by the constitution to enforce the laws as passed by congress. Basic civics lesson. Congress makes the laws, the President enforces the law and the Judiciary interprets the law. The president cannot override the laws once they have been lawfully enacted. (Which makes me wonder why you don't hate clinton, he signed DOMA into law. Do you hate him with the same passion you hate Obama?) I realize that you are used to Bush violating the laws, I just don't think you understand that Obama is abiding by them.

[ThomCat]

73. Again, you ignore stuff you can't answer and change the scope of the

discussion. :eyes:

First this was about whether or not the DoJ was Required by statute to defend every case. Now you're changing it to whether or not it's merely Right that they defend every case.

you're deflecting with questions about my opinions of Clinton, and earlier about opinions of signing statements and everything else. Along the way you're now putting in digs about my supposed lack of knowledge. I hope that makes you feel better about yourself.

Again, it seems like your method of arguing is to throw everything to see what sticks.

This has become tiring. Good night.

[JustinL]

31. they both take an oath of office to uphold the Constitution, don't they?

Therefore, neither one should defend blatantly unconstitutional legislation.

[merh]

38. The California Attorney General takes an oath to uphold the

laws of the state of California and the California Constitution, first and foremost. The Constitution for the State of California requires compliance with the US Constitution.

The Attorney General for the US and the DOJ were created by congressional legislation, by statutes. By statute, they are required to defend and enforce the laws passed by Congress and to defend the USA when it is named as a defendant in a lawsuit. That is what they are doing when they filed the documents in the Smelt case. All acts of congress, once signed by the president (DOMA was signed into law by Clinton) are deemed constitutional until the courts hold otherwise. The DOJ cannot just say "we don't like the law, we won't answer the suit". The DOJ is obligated/required to defend the laws as passed by congress.

[sandnsea]

23. Different law suits, different points of law

DOMA is a federal law. The California marriage law is a state law. They just aren't the same. Not that anybody cares anyway.

[ruggerson]

27. What you're missing is that the Obama DOJ just severely undermined a potential future case

whether it's the Olsen case or the GLAD case in MA or another future suit.

They didn't have to write the brief the way they did.

[sandnsea]

33. A Motion to Dismiss

doesn't decide anything. And the DoJ will likely argue against the MA case, Boies case, etc. They will let the courts decide. Why do we not want the courts to decide the law. I do not get it.

[ruggerson]

37. we do want the courts to decide the law

but the law is man made - it is subject to interpretation and biases. Why was Bowers decided one way and then completely overturned and reversed by Lawrence just 17 years later?

This is a process that has to be played very carefully. Laying the groundwork for a full repeal of DOMA and a sweeping Loving type decision needs years of preparation and strategy. The DOJ motion to dismiss was ill conceived and the basis that they argued the brief on very possibly damages future cases which are much stronger, such as the Olsen case.

[merh]

39. If you read the Smelt case you would know that it is a weak case.

It was weak when they filed it in 2000 and when the 9th circuit heard it in 2006 and when the district court dismissed it in 2008. They claim to be harmed by the DOMA but they do not provide particulars. The courts have always held that you have to show specific harm, not general "maybe" harm.

Harvard professor Laurence H. Tribe has stated publicly that he is grateful that the DOJ filed a motion to dismiss the Smelt v. United States because they do not have the strongest case and their case can create precedent which may harm future cases.

[sandnsea]

48. Ah, okay

That's why they want to go forward with the MA cases, they're being denied spousal survival benefits.

[merh]

51. exactly, they have suffered harm and are not predicting that they

could suffer harm the way that the smelt case is predicting. I believe Olson's client in Perry have also been denied benefits and can show the harm.

[JustinL]

29. both laws violate the 14th amendment

Don't U.S. Attorneys take an oath of office to uphold the Constitution, just like Jerry Brown did?

[sandnsea]

32. Smelt & Hammer aren't married

Never were married. DOMA is a law about marriage, like it or not. If it is to be overturned, it's for the courts to do it, not the executive.

When a case goes forward with a married couple applying for federal benefits, then the 14th Amendment will kick in. The Boies case is targeted directly at the Constitution, not a county office that was following state marriage laws.

They're just different cases.

[merh]

46. They are married now.

That's why the filed anew, they believe their marriage status gives them the standing they were lacking when the case was dismissed in 2006/2008.

[sandnsea]

47. I thought I read they weren't together

Since they're married, the motion actually doesn't make sense to me because the married couple is being affected by DOMA. I suppose it has something to do with the length of the case and the original questions which have been resolved because the couple can now get married.

[merh]

50. I'm pretty sure that the Brief is recycled from the other case.

It worked before, why shouldn't it work now. But they still have issues with standing. If they have not had a federal benefit denied to them or a state benefit, then the court may rule that they have no standing because they have suffered no harm.

[Bluebear]

76. You said it.

[Starry Messenger]

3. recommend.

I'm so happy he's pushing this forward. I had him as my mayor for years and he was a little "meh" towards the end. He's really blossoming as AG. :bounce: What a hero!

[CaliforniaPeggy]

4. You know he's running for Governor...

I wish he'd stay AG. Still...

He's a very good man, no matter what he decides to do, or what office to occupy...

[ruggerson]

6. Hard choice between him and Mayor Newsom

Jerry is one of a kind.

Gavin is a true civil rights hero.

We have some good choices this time.

[Starry Messenger]

10. I know, hard call.

It will be a good race though. :) Last time was depressing.

[Starry Messenger]

7. Well, if he gets this thing fixed

I'll be happy if he is Governor or retires to be a balloonist. :D He'll have earned whatever he wants. Too bad we can't clone him.

[LuvNewcastle]

14. Is this the same Jerry Brown who was

Governor and ran for President? If so, I've always liked him -- I supported him for Pres. in 1992.

[Hissyspit]

15. Yes.

[Starry Messenger]

17. Yes it is!

There's a good video of him being interviewed about this in Political Videos that just got posted too.

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=385x324279

It could use some recs (hint hint) :)

[LuvNewcastle]

21. Thanks.

And I got the hint.;-)

[Dramarama]

19. Newsom or Brown For Gov

[glitch]

20. K & R good man, Jerry Brown. nt

[EFerrari]

26. Good man, Jerry!

:applause:

[Odin2005]

30. Oh god, here come the DOJ DOMA apologists spewing BS

:eyes:

[bridgit]

42. I've always liked Jerry

[TexasObserver]

45. He's absolutely right. It's time to invoke the 14th to end this discrimination.

Sometimes justice requires judges who will reach to lasso rights that should be legislatively recognized, but are not yet. Society changes after these events, not before.

[1]

71. so, as the ag.. can't he do something about this? lay down the law? reverse this? he is the ag...

if not now, when? if not the ag, then who?

[merh]

75. Kick

This is the case that is crucial to the overturning of DOMA and the restoration of civil rights to all.

[David Zephyr]

77. Jerry Brown has this correct: It's all about the 14th Amendment

Which is why I oppose my GLBT sisters and brothers who think pushing for another mob-rule plebiscite is a good idea.

Voting on civil rights is a violation of the 14th Amendment. That is the entire point.

Jerry Brown, fortunately, sees this correctly.

[Solly Mack]

78. K&R Law (DOMA) rooted in bigotry and hate has no defense.

[AntiFascist]

79. K&R, at least Jerry Brown is a fierce advocate for the Constitution...

and fully understands the implications of Equal Protection. Too bad the constitutional scholar who we elected can't see it the same way.

[bridgit]

84. Again...Go Jerry!!

:kick:

[Cleita]

87. Oh Gawd! I love Jerry. Am I too old for him?

Well, I'm not Linda Ronstadt, but I am half Latina and half Germanic. I also live a rather nunnish life (mostly due to lack of money) and I'm a widow. I am also Catholic. Oh Jerry will you marry me? Or, am I turning into Stephanie Miller, whom I love, and who probably has a better chance at Jerry than me. :-)

[ProfessorGAC]

90. This Does Seem Like A "Well, Duh!"

I think Jerry's right. It seems kind of obvious that, at the ver least, the spirit of the 14th ammendment is violated by this plebiscite.

It seems to me to be a case of tyranny of the majority, which seems the opposite of what the 14th upholds.

I always liked Jerry B. I guess i still do.
GAC

[OPERATIONMINDCRIME]

95. Trying To Persuade The Audience That These Cases Are Even Remotely Parallel Is Deceit At Its Finest.

Two completely different cases with two completely different legal arguments at their core. Trying to link them as "see what he did versus what he did?" is the game of a fool.

[AntiFascist]

100. Rescinded

[Toasterlad]

96. Nice To Know That Some Politicians Actually Give a Shit About Equal Rights.

You go, Jerry.