Court Should Strike Down Proposition 8

The California Supreme Court finds itself center stage this Thursday when it will hear oral arguments on whether it should uphold Proposition 8’s ban on same-sex marriage.

The case touches the heart of our democracy and poses a profound question: can a bare majority of voters strip away an inalienable right through the initiative process? If so, what possible meaning does the word inalienable have?

The state faced a dilemma like this before. In 1964, 65 percent of California voters approved Proposition 14, which would have legalized racial discrimination in the selling or renting of housing. Both the California and U.S. Supreme Courts struck down this proposition, concluding that it amounted to an unconstitutional denial of rights.

As California’s Attorney General, I believe the Court should strike down Proposition 8 for remarkably similar reasons — because it unconstitutionally discriminates against same-sex couples and deprives them of the fundamental right to marry.

Some vigorously disagree. That’s the position of Ken Starr and those who argue that a simple majority can eliminate the right to marry. But such a claim completely ignores California’s history and the nature of our constitution.

Fundamental rights in California are recognized and protected by our constitution, which declares in Article I, Section 1 that “all people are by nature free and independent and have inalienable rights” and “among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”

These fundamental premises of a free people were declared when the constitution was first adopted. The initiative process came much later in 1911, when the immediate concern was to give the people power over the railroads, which were seen as having a stranglehold over the legislature. In creating this initiative process, there was no discussion or any evidence of intent to permit a simple majority of voters to take away the pre-existing rights deemed inalienable by Article I.


In 2008, the California Supreme Court was faced with the question of how the values enshrined in Article I apply to same sex marriages. It concluded that the concept of “liberty” includes the right to form the enduring relationship called marriage and that no compelling interest justified denying this right to same sex couples. Just like the right to be free from discrimination in housing, citizens have the right to be free from discrimination in state-granted marriage licenses.

With this Supreme Court decision, same sex marriage has the protection of Article 1 and, like other inalienable rights, cannot be taken away by a popular vote — whether it be 52% (as was the case in Proposition 8 ) or 65% (as it was for Proposition 14).

I believe, therefore, the Court must conclude as I have that Proposition 8 is unconstitutional and should be striken.

Jerry Brown

Jerry Brown is California’s Attorney General. Become a supporter of Jerry on Facebook at


  1. Zuma says

    Jerry Brown has the bad habit of putting the Constitution above the people of California. He does this everytime their is a dispute.

    Judges are prohibitted from impairing the terms of a legal contract. There is an inalienble right to enforce a legal contract.
    It is the people of this state that have rights, not govt and not people acting on behalf of govts. Govts have duties not rights.

    So when judges of California impaired the terms of a legal contract, denied the right to enforce a legal contract, and actually changed terms disclosed in a federal disclosure? He defended the judges! He should have been prosecuting them for civil rights violations. His defense was the their are “doctines” that put judges above the Constitution and therefore if they are above the Constitution they dont have to enforce it. So the oath of federal judges and the Constitution are meaningless.

    Marriage is not discussed in the American Constitution as it was considered a holy and religious union of man and woman. To many religious people, marriages by the state are not truly marriage in the eyes of Christians. As it is a bond made by God not judges, officials etc. We do have a separation of church and state. Leave unto the states the powers of Ceasar, but marriage is not one of them and it it never was an inalienable right in America.

    Lastly, Constitutions are rules made by people for govts and people.The same people than made them can change them at will at any time. We surely changed the role of the British Crown, who resisted at the time.

    Lets talk about fundamental rights! Do people have the right to wear body armour as a fundamental right/
    According to Jerry Brown only police or the state has the right to wear armour not the citizens. As you recall, it is the citizens of America that are sovereign in this country not the state. And as they are the sovereign authority, they can change the Constitution at will. Marriage was never an inherent right, and inalienable right, and was never a right at all addressed by our Constitution. It was an accepted union made by God.

    The people decide what rights exist. While we say their are inalienable rights, who chooses what they are? We assume we have a right to live, we have a right to contract, as contracts have been around and accepted for century upon century for a minimum of 700 years, and probably longer.

    This is why we kept govt out of contracts and especially courts.

    In fact, when a judge impairs a contract, according to the Supreme Court, the act is void “on its face”, for lack of authority to do so.
    Alexander Hamilton told us that when a judge impairs a contract, every reviewing the act MUST declare it void – Of course this doesnt apply to judges in California or under the 9th Circuit, but only because both refuse to enforce and accept the American Constitution!

    So when Jerry Brown learns that the people and their decisions are sovereign and above the state and Constitution, we shall flourish as a free democratic society. In the interim, Jerry should review the meaning of democracy, republic, sovereignty and the history of marriage and traditions that have outlive Rome!

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