JURIST - Paper Chase: California AG asks state supreme court to invalidate same-sex marriage ban

[JURIST] California Attorney General Edmund Brown Jr. [official website] on Friday urged the Supreme Court of California [official website] to declare Proposition 8 [text, materials] unconstitutional [press release]. In a brief [text, PDF] submitted to the court, Brown argued that Proposition 8, the ballot measure that amended the state constitution [text] to ban same-sex marriage [JURIST news archive], should be overturned for violating the article I, section 1 of state constitution. Brown concluded:

The use of the initiative power to take away a legal right deemed by this Court to be fundamental and from a group defined by a suspect classification is a matter of grave concern. Existing precedents of this Court do not support the invalidation of Proposition 8 either as a revision or as a violation of the separation of powers. However Proposition 8 should be invalidated as violating the inalienable right of liberty found in article I section 1 of our Constitution.

Brown also added that even if the court finds Proposition 8 constitutional, "it should be narrowly construed to uphold the marriages that took place prior to the enactment of the initiative" between June 16 and November 4, 2008.

Last month, the Supreme Court of California agreed [order, PDF; JURIST report] to hear challenges to Proposition 8, while refusing a petition to stay [text, PDF] its enforcement. The court will begin hearing arguments in March to determine whether Proposition 8 violates the state constitution and, if not, its effect on existing same-sex marriages. Petitioners contend the initiative is a constitutional revision, not an amendment, and requires approval from two-thirds of the state legislature [official website]. The ruling followed two weeks of protests [NYT report; JURIST report] and petitions [materials] challenging the amendment since its approval [JURIST reports] by voters last month.

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