California's attorney general, the state's chief law officer, has the duty to uphold the California Constitution.
So what is the duty of Attorney General Jerry Brown on Proposition 8, the voter-approved ballot initiative that changed the state constitution to eliminate same-sex marriage?
There's no hiding from the issue, which is before the California Supreme Court. A March hearing and a ruling within three months are coming.
At first, Brown's stance was technical: The amendment was properly passed by voters and he would defend it in court.
Now, however, he has reversed himself, saying it is his job to defend the whole California Constitution – not just the power of voters to amend the Constitution.
This is the right course.
Brown rightly notes that the Proposition 8 case poses a conflict between the constitution's Declaration of Rights (Article I, Section 1) and the power of the voters to amend the constitution (Article XVIII, Section 3). He concludes that the state Supreme Court should "harmonize the two constitutional provisions" to safeguard "both the legal rights of minorities and the people's right to direct democracy."
How to do this? Article I, Section 1 states that all people have "inalienable rights," including life and liberty, property, safety, happiness, and privacy.
Brown argues that any measure that would abolish these fundamental rights must have a "compelling reason" for doing so – it must be necessary to provide for public health, safety or welfare.
So he puts it before the court: Do the proponents of Proposition 8 have a compelling justification to deprive individuals of the fundamental right to marry? Brown's own answer is that they do not – and we agree.
Now it's up to the court to do its own evaluation.
Brown's action is not unprecedented. It follows in the footsteps of Attorney General Thomas C. Lynch in another controversial discrimination case.
In December 1963, California legislators passed the Rumford Fair Housing Act to end housing discrimination by property owners who refused to rent or sell their property to "colored" people.
Voters then repealed the fair housing law and amended the California Constitution with Proposition 14, giving property owners "absolute discretion" in renting or selling.
The court could have let that vote by the people stand but instead did the right thing and ruled it unconstitutional in spring 1966. The matter became an election issue and Ronald Reagan, then running against incumbent Gov. Pat Brown, said, "If an individual wants to discriminate against Negroes or others in selling or renting his house, he has a right to do so." Reagan won the 1966 election.
The case went on to the U.S. Supreme Court. Lynch later recalled: "Reagan wanted me to go in and try to overturn the California Supreme Court. I said, 'I'm not going to do it.' "
Lynch filed a compelling brief urging the high court to rule Proposition 14 unconstitutional. The U.S. Supreme Court upheld the state court's action in June 1967.
More than 40 years later, here we are with voters approving another constitutional amendment that would involve the state in discrimination against a disfavored group. Brown is right to urge the court to uphold the whole of the California Constitution, not just the people's initiative power.
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