Take His Advice, Jerry!
Jerry Brown has a legal obligation to oppose Prop. 8
Derald E. Granberg
Thursday, December 4, 2008
I heard Jerry Brown say on Nov. 5 that, as the California attorney general, he was obligated to represent in court the political majority that had voted for Proposition 8, which banned same-sex marriage in California. His statement, which I heard on the early morning news radio, told me two things: First, Brown did not understand his duties as attorney general under the state Constitution and, second, that he was unaware of some significant history of that office.
Accordingly, I called Brown's office in Sacramento to inform him that in 1964, then-Attorney General Stanley Mosk had opposed in court a ballot proposition that had been approved by a majority (65 percent) of the electorate. Mosk opposed Proposition 14, which would have amended the state Constitution to nullify the Rumford Fair Housing Act. The Rumford act, a law passed in 1963, said landlords and property owners could not discriminate based on "ethnicity, religion, sex, marital status, physical handicap, or familial status." The U.S. Supreme Court agreed with Mosk's opposition by holding that Proposition 14 violated the equal protection clause of the U.S. Constitution.
Brown's executive secretary assured me she would convey my information to Brown, and request the litigation file from archives to confirm that the office had opposed Proposition 14.
Given the foregoing information, which by now must be in Brown's hands, I am surprised that he still insists he is obligated to represent the position of the majority of the electorate.
I hope that one of the parties before the state Supreme Court would move to expand the issues before the court to include federal equal protection and the federal constitutional requirement of separation of church and state. In my opinion, those issues hold more persuasive ability to invalidate Proposition 8 than does the issue of amendment versus revision, which is the only issue now before the court.
The attorney general should recognize that when the will of the majority is discrimination against a minority group, the courts have a legal and moral obligation to protect fundamental rights.
Derald E. Granberg is a retired lawyer who devoted his entire legal career to the California attorney general's office (1961-1995).