Legal News

California AG Reverses Course: Prop. 8 = Tyranny of the Majority

By Dan Slater

California Attorney General Jerry Brown speaks in Sacramento, Calif, Nov. 5, 2008. (AP/Rich Pedroncelli)

A month after California’s High Court decided to review legal challenges to Proposition 8, the state’s ballot measure that banned gay marriage, gay rights proponents picked up a bit more steam in their push to get the ban overturned. On Friday, the L.A. Times reported that California Attorney General Jerry Brown asked the court to invalidate Prop 8. It was an about-face for Brown, who initially said he planned to defend the proposition.

But after studying the matter, Brown (UC Berkeley, Yale Law) reportedly concluded that “Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification.” In his brief to the high court, Brown noted that the California Constitution says that “all people are by nature free and independent and have inalienable rights,” which include a right to “privacy.”

Although voters are allowed to amend other parts of the Constitution by majority vote, to use the ballot box to take away an “inalienable” right would establish a “tyranny of the majority,” which the Constitution was designed, in part, to prevent, he wrote. “For we are talking, necessarily, about rights of individuals or groups against the larger community, and against the majority — even an overwhelming majority — of the society as a whole.”

Full post as published by Law Blog - WSJ.com on December 22, 2008 (boomark / email).