Jerry Brown's About Face: Void Prop. 8

Ross von Metzke, Advocate.com: In a surprising change of pace, California Attorney General Jerry Brown made a bold statement Friday by urging the state’s supreme court to void Proposition 8.

The proposition, which reversed a supreme court ruling legalizing same-sex marriage in the state of California, passed on election day by a narrow margin. Brown said Proposition 8 is in and of itself unconstitutional because it “deprives a minority group of a fundamental right.”

That’s an about face for Brown, who had previously said he would defend the ballot measure against legal challenges from gay marriage supporters. The attorney general is legally bound to uphold the state’s laws as long as there are reasonable grounds to do so.

With his surprising 111-page legal brief -- filed at the last possible moment before the court’s deadline -- Brown offered substantial support for overturning Proposition 8.

"It became evident that the Article 1 provision guaranteeing basic liberty, which includes the right to marry, took precedence over the initiative," he said in an interview Friday night. "Based on my duty to defend the law and the entire Constitution, I concluded the court should protect the right to marry even in the face of the 52 percent vote."

Brown served as the governor of California from 1975 to 1983 and is rumored to be seeking the office again in 2010. Though Brown said he personally had voted against the marriage ban, as recently as last month, he said he would fight to uphold it as the state's top lawyer.

Opponents of gay marriage, who also filed arguments with the court Friday, were said to be shocked by Brown’s decision.

The Protect Marriage coalition urged in their brief that the justices uphold the proposition, which voters approved 52% to 48% on Nov. 4 -- the most expensive battle for gay rights in history.

Andy Pugno, the lawyer for Protect Marriage, told the Associated Press that Brown's argument is "an astonishing theory." He said he was "disappointed to see the attorney general fail to defend the will of the voters as the law instructs him to."

Also up for debate –the state of the 18,000 same-sex marriages performed before the election.

Brown argued that Proposition 8 was not written to be retroactive and that the marriages should remain valid.

Protect Marriage countered that none of the same-sex marriages should be legally recognized.

The Supreme Court justices are expected to hear arguments in the case as early as March, with a ruling expected later in the spring. Kenneth W. Starr, the former Whitewater prosecutor and U.S. solicitor general, plans to argue on behalf of Protect Marriage, the group said Friday.