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By Geoff Metcalf

December 24, 2008

“The essence of government is power, and power, lodged as it must be in human hands, will ever be liable to abuse.” --James Madison

California Attorney General Jerry Brown (once upon a time “Governor Moonbeam”) wants a do-over, a mulligan, a second bite at the apple. He has changed his position on the state's new same-sex marriage ban. Now, in the wake of a cosmic epiphany and revisionist interpretation of the state Constitution, he is now urging the state Supreme Court to void Proposition 8.

Despite 52% of the California electorate having spoken in support of the institution and tradition of marriage, Jerry wants the courts to trump the people.

In what is being called a dramatic reversal, Attorney General Jerry Brown filed a legal brief saying Proposition 8, the measure that amended the California Constitution to limit marriage to a man and a woman is itself unconstitutional. His fuzzy argument is it deprives a minority group of a fundamental right. Bullfeathers! Same sex ‘marriage’ is not a “fundamental right”. It may be a presumed or a preferred right but it is not a “fundamental right”.

Previously, Brown had said he would defend the ballot measure against legal challenges from gay marriage supporters as his job requires. That was then…this is now (and California Democratic/Progressive politics).

It is passing curious that now; the AG feels the Proposition is unconstitutional. Prior to signatures being gathered, and prior to having been placed on the ballot, the Secretary of State, and the California Legislative Analyst failed to recognize what Brown now claims as fact. The Leg Analyst office “prepares and analyses of all measures that qualify for the statewide ballot. Jerry is just way wrong, and abusing his power under the color of authority.

Elizabeth G. Hill, longtime Legislative Analyst once said, “Facts, analysis, and advice are powerful forces in public decision making. That said, it is important to recognize the limitations of policy analysis. No basis exists for me, for example, to advise the legislature on the ‘appropriate’ level of progressiveness in the state's income tax or to draw conclusions about comparable redistribution issues. As a nonpartisan advisor, I cannot take a position substituting my philosophical preferences for those of decision makers.” Jerry Brown apparently doesn’t have a problem “substituting his philosophical preferences” for those of the voters and recognizes none of the “limitations” other analysts must endure.

Part of his problem is he wants to run for Governor again and as a Democrat in California one best not alienate the powerful gay minority. The Gay lobby may be small in numbers but they are huge in money and influence and know how to use it (and abuse it).

Brown claims he reached a different conclusion (from his initial acknowledgement to defend the will of the people) "upon further reflection and a deeper probing into all the aspects of our Constitution.” Reflection for sure…reflection about the potential mega angst the gay lobby would rain on his gubernatorial dream quest. However, to say a “deeper probing into all the aspects of our Constitution” is a lame revisionist grasp for justifying abuse and defending the indefensible.

However, there is a pothole in the road for the sponsors of Proposition 8 and the majority of Californians. The call for the court to undo the marriages of the estimated 18,000 same-sex couples who exchanged vows before voters banned gay marriage at the ballot box is frankly a dog that won’t hunt.

Why? Hey, suck it up…you can’t have an ex-post facto law. What is done is done. Milk that is spilt can not be put back in the bottle.

Those 18,000 same-sex couples who were “married” before Prop 8 are still married and will remain so, notwithstanding Prop 8. They successfully jobbed the system and the supporters of Prop 8 were too late to preempt them.

The Yes on 8 campaigns filed a brief telling the court that because the new law holds that only marriages between a man and a woman are recognized or valid in California, the state can no longer recognize the existing same-sex unions. I’m not so sure?

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Dean Kenneth Starr (yeah, THAT Ken Starr) co-wrote the brief that says, "Proposition 8's brevity is matched by its clarity. There are no conditional clauses, exceptions, exemptions or exclusions,"…and he is right. However, Brown and his buddies are also right that the gay marriage ban may not be applied retroactively.

Thomas Jefferson once wrote, “The sentiment that ex post facto laws are against natural right is so strong in the United States, that few, if any, of the State constitutions have failed to proscribe them.”

� 2008 Geoff Metcalf - All Rights Reserved

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Despite 52% of the California electorate having spoken in support of the institution and tradition of marriage, Jerry wants the courts to trump the people.