For those of you who want to jump from your few months of summer fun back into lives of political activism, here’s an update on the amendment to the California constitution known as Proposition 8.
The validity of same-sex marriage is a very emotionally and politically charged topic, so let me be perfectly clear: I’m not debating its validity. My argument is that California Attorney General Jerry Brown, and to some degree Gov. Arnold Schwarzenegger, failed to fulfill the duties of their respective offices by declining to defend against the recent challenge to the California constitution. Brown allowed his personal feelings about Prop 8 to impede his responsibility to the constitution.
Prop 8 was passed in November 2008 by a 52.24 percent majority and amended the California constitution to state, “Only marriage between a man and a woman is valid or recognized in California.”
On May 26, 2009, the California Supreme Court, in the case of Strauss et al. v Horton, rejected the plaintiffs’ request to invalidate the amendment to the California constitution effected by Prop 8. The court instead affirmed “that Proposition 8 constitutes a permissible constitutional amendment.”
More recently, a new lawsuit was filed in U.S. Federal Court in San Francisco by two same-sex couples suing for the right to marry their respective partners. The plaintiffs named Schwarzenegger and Brown, along with other state officials, as defendants. On Aug. 8 Judge Vaughn Walker released his decision that Prop 8 “is unconstitutional under both the due process and equal protection clauses [of the U.S. Constitution].”
Now here’s the extraordinary part: Not one of the named defendants appeared in court. Defendant-intervenors (interested parties who wish to proffer a defense on behalf of the defendants) from the private sector instead shouldered the responsibility of defending the state constitution.
The oath of office taken by every elected official in California, including the governor and the attorney general, makes them swear to “support and defend . . . the constitution of the state of California against all enemies, foreign and domestic” and to “bear true faith and allegiance to the constitution of the United States and the constitution of the state of California.” Where was the attorney general for the state of California to defend the constitution of the state of California?
Though Prop 8 passed by only a slim margin, it was indeed passed, and consequently it amended and became an unmistakable part of the constitution.
Additionally, as public servants in charge of maintaining and looking out for the best interests of their constituents, the governor and the attorney general should have gone to bat for the desires of the majority, regardless of their personal beliefs.
“Barring a law that is unconstitutional on its face, the proper role of an attorney general is to enforce and defend the will of the people as manifested through the initiative or legislative process,” Los Angeles District Attorney Steve Cooley said in an official statement. “The will of the people should be respected and not overturned easily or lightly.”
If Brown thought the law was unconstitutional, he should have attempted to address it earlier.
Until someone with proper authority (such as the U.S. Federal Judiciary) tells him otherwise, it is not up to the California attorney general’s discretion to ignore his obligation to mount a vigorous defense of the California constitution. Deciding beforehand, as Jerry Brown did, that the proposition was unconstitutional was a neglect of the fundamental duty of his office.
After Walker’s ruling was handed down, Brown said, “In striking down Proposition 8, Judge Walker came to the same conclusion I did when I declined to defend it.” Brown, however, is not a federal judge but an attorney elected and employed for the defense of the state and its constitution.
Even while holding political office and bound to the same oath that he will affirm if he is elected governor in November, Jerry Brown shirks his official responsibility when it doesn’t align with his personal interests. Which laws will he decline to enforce as governor? Obviously the public will grant Jerry and his cohorts latitude, realizing that they have images to maintain and agendas to propagate. But California is in dire need of leaders who, unlike Brown, can put aside personal interests in favor of the greater good in order to extricate the State from its present challenges.
The constitution should be something that our leaders will invariably defend, regardless of how it may impact their political futures.
Reid Roman is a sophomore majoring in industrial and systems engineering.