California's current attorney general, Jerry Brown, has a reputation as a progressive and a free-thinker, who is not afraid to do what's right instead of what's popular. That's why his latest action didn't surprise me as much as it did some people.
When Prop 8 passed with a slim majority in the November election, most pundits believed Brown would support the majority when opponents of Prop 8 took it to the California Supreme Court in an effort to overturn the new law. Prop 8 denies homosexuals the right to marry in California. But Brown didn't do as expected. He is once again marching to his own drum beat.
Last Friday, right before the court's deadline, Brown filed a 111 page brief asking the court to overturn Prop 8. The Los Angeles Times called Brown's argument a "novel legal theory". I just call it a brilliant defense of individual rights.
Attorney General Brown (pictured above) says California's constitution guarantees the citizens of the state certain inalienable rights to liberty and to privacy. California courts have already decided that the right to marry is included in the right to privacy. This sets up a conflict between the voter's right to change the constitution and the inalienable rights of all citizens, since Prop 8 removes the right of a specific class of citizens to marry.
Brown says that while California voters have the ability to change or amend their constitution, they do not have the ability to deny or remove the inalienable rights of any group or class of people. Allowing voters to remove a group's rights would create a "tyranny of the majority" and place all of the inalienable rights in danger.
That is a clear and concise bit of legal thinking, and goes to the crux of the problem. It is now up to the California Supreme Court to act to protect the rights of ALL of California's citizens.