Tuesday, September 06, 2011

Jerry Brown Violated His Oath of Office in Failing to Appeal a U.S. District Court's overturning of Prop. 8 in CA defining "marriage."

Oral arguments are to be heard today (Sept. 6, 2011) in the matter of Perry v. Brown S189476, concerning gay marriage rights in California.

Last year a federal judge struck down California's Proposition 8 added to the state Constitution by a majority vote of the citizens.  Proposition 8 states that marriage is defined as a legal union between one man and one woman.  The Proposition was vehemently opposed by gays who argued that denying them the right to marry was a violation of their equal rights under the law.  The backers of the proposition argued that the state had compelling interests in defining marriage, and that the right had long been recognized and settled as a prerogative of the state in the interests of maintaining a stable and prospering society.  

Then Attorney General Jerry Brown (now governor) announced publically his position that the proposition was unconstitutional, and that he would take no action to bring an appeal of the District Court's ruling.  The backers of the Proposition then stepped into the breach to file the appeal as a true party in interest.  The gay parties then filed a challenge to the appeal, stating that the backers of Prop. 8 had no standing to bring the appeal, that is, they were not authorized to represent the people of California.  They argued that right resided alone in the Attorney General.  

The Ninth Circuit Court of Appeals certified the question as a matter of state law for the State Supreme Court to issue an advisory opinion.  The State Supreme Court will now decide if the backers of the proposition have "standing" when no government official will advance the appeal.  The argument for the granting of standing is that the initiative process is unique in its function of bypassing government officials in bringing a matter of enacted law to the vote of the general citizenry.  Consistent with that purpose, the process should include the right of the representatives that presented the initiative to press the appeal even beyond the vote when elected officials fail to do so.  The counterargument is that the initiative process stops with the enactment of the provision, and only the attorney general has the authority to defend the Proposition.  He alone represents "the people."  

My question is what happens when an elected official, in this case, Jerry Brown, violates his oath of office as Attorney General, and fails to "support and defend the Constitution of the State of California".  The initiative process by its nature is an act of distrust of public officials to carry out the will of the people.  Should not the initiative process be in continuous application through the appeal process in the courts as well as the ballot process?  It would be wise for both sides to reflect that each will have access to the initiative process, and each side may seek "standing" before a court if the issue turns against them.  It is time for the CA Supreme Court to do the right thing, and inform the U.S. Court of Appeal that this state recognizes the standing of the backers to speak on behalf the State Constitution when the Attorney General violates his duty to do so.  This approach, whatever the eventual outcome, will serve democracy as an important precedent.  

The following is the constitutional oath of office taken by Jerry Brown, and disregarded by him in failing to file an appeal of the U.S. District Court's ruling.  Proposition 8 was enacted by the people to be a provision of the State Constitution.  




SEC. 3.  Members of the Legislature, and all public officers and

employees, executive, legislative, and judicial, except such inferior

officers and employees as may be by law exempted, shall, before they

enter upon the duties of their respective offices, take and

subscribe the following oath or affirmation:


"I, ______, do solemnly swear (or affirm) that I will support

and defend the Constitution of the United States and the Consti-

tution of the State of California against all enemies, foreign

and domestic; that I will bear true faith and allegiance to the

Constitution of the United States and the Constitution of the

State of California; that I take this obligation freely, without

  any mental reservation or purpose of evasion; and that I will

well and faithfully discharge the duties upon which I am about

to enter.

"And I do further swear (or affirm) that I do not advocate,

nor am I a member of any party or organization, political or other-

wise, that now advocates the overthrow of the Government of the

United States or of the State of California by force or violence

  or other unlawful means; that within the five years immediately

preceding the taking of this oath (or affirmation) I have not

been a member of any party or organization, political or other-

wise, that advocated the overthrow of the Government of the

United States or of the State of California by force or violence

  or other unlawful means except as follows:



(If no affiliations, write in the words "No Exceptions")

and that during such time as I hold the office of ______________


________________________________ I will not advocate nor become

(name of office)

a member of any party or organization, political or otherwise,

that advocates the overthrow of the Government of the United

States or of the State of California by force or violence or

other unlawful means."


And no other oath, declaration, or test, shall be required as a

qualification for any public office or employment.

"Public officer and employee" includes every officer and employee

of the State, including the University of California, every county,

city, city and county, district, and authority, including any

department, division, bureau, board, commission, agency, or

instrumentality of any of the foregoing.


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