Prop 8 Official Proponents Respond to New Legal Issue

Proponents say 'The Attorney General is inviting this Court to declare a constitutional revolution.'

SACRAMENTO (Christian Newswire) - As directed by the California Supreme Court, the official proponents of Proposition 8 and their campaign committee, ProtectMarriage.com -- Yes on 8, today filed legal arguments responding to a new and unprecedented legal theory proposed by the California Attorney General to invalidate the voter-passed measure. Proposition 8 added a new section to the "Declaration of Rights" of the California Constitution, to read: "Only marriage between a man and a woman is valid or recognized in California."

Today's filing represents the latest development in three lawsuits originally filed by opponents of Proposition 8 claiming that it could not be enacted as an initiative amendment, but rather only by a constitutional "revision," which requires either a two-thirds vote of the Legislature or a statewide Constitutional Convention.

Responding to the legal challenges in mid-December, the Attorney General agreed with the official proponents that Proposition 8 was properly enacted by voter initiative, and therefore did not require a vote of the Legislature. The Attorney General also rejected claims by Prop 8 opponents that the measure violated the separation of powers between the branches of government.

But in the concluding 15 pages of his December brief, the Attorney General proposed a new, unprecedented legal theory that Proposition 8 -- despite being a properly enacted constitutional amendment -- is itself unconstitutional because it violates "inalienable or natural rights."

That led the California Supreme Court to ask Proposition 8's official proponents, who had already intervened in the cases to defend the people's vote, to file a brief responding to the Attorney General's new "inalienable rights" theory. Here are some excerpts from today's court filing:

"We will not mince words. The Attorney General is inviting this Court to declare a constitutional revolution. His extra-constitutional vision is one of unprecedented judicial hegemony, a sweeping power vested in the least-democratic branch that overrides the precious right of the people to determine how they will be governed." (Page 1.)

"With all respect, the Attorney General has invented an entirely new theory, grounded in ringing principles of natural law and natural rights, but utterly without foundation in this Court's case law." (Page 1.)

"The [Attorney General's] argument is not only unprecedented but contradicts the most basic understanding of the role of the judiciary in a constitutional democracy. This Court has never presumed to have the power to strike down - in the name of undefined inalienable or natural rights - constitutional amendments properly enacted by the people." (Page 3.)

"The Attorney General's theory fails at every level because the people have the final word on what the California Constitution says and there is no higher legal authority within California to which the judiciary can appeal." (Page 4.)

"The Attorney General does not cite a single California case suggesting that the judiciary has authority to strike down properly-enacted amendments to the Constitution for violating article I, section 1 or undefined notions of inalienable rights or natural justice. This Court's jurisprudence is devoid of anything approaching such a far-reaching principle." (Page 4.)

"The Attorney General's theory would fundamentally alter the role of the California judiciary. ... It would, in brief, constitute the California judiciary as the supreme overseer of the people's use of their constitution-making power - a result patently contrary to popular sovereignty. The creation of such a judicial oligarchy would constitute a profound revision of the California Constitution." (Page 11.)

"The practical result of the Attorney General's theory is that the people can never amend the Constitution to overrule judicial interpretations of inalienable rights." (Page 13.)

Legal briefing by the parties will continue through January 2009. A hearing on the cases could be held as early as March 2009. Kenneth W. Starr, former Solicitor General of the United States and a former Judge on the United States Court of Appeals for the District of Columbia Circuit, will argue the case before the California Supreme Court on behalf of Proposition 8's official proponents.

Copies of written briefs are available online at the California Supreme Court's website: www.courtinfo.ca.gov/courts/supreme/highprofile/prop8.htm.