Jerry Brown got a lot of accolades for his opposition to Proposition 8 , the anti-gay-marriage initiative (including some from us), but it was clear from today's historic state Supreme Court hearing that the attorney general did more harm than good. Today's hearing, in fact, makes one wonder whether Brown inserted himself into the Prop. 8 fight for purely political reasons.
The basic battle today was the argument over whether Prop. 8 was an illegal revision to the state constitution or a legal amendment. Lawyers for gay marriage supporters argued that it was a sweeping, illegal revision, and as a result, same-sex marriage couldn't be outlawed by a simple majority vote (Prop. 8 won in November by four percentage points). Anti-gay marriage attorneys argued the opposite -- that Prop. 8 was a simple, ordinary amendment that only needed 50 percent plus one to become law. Brown, meanwhile, maintained that he was with the same-sex marriage supporters, but then he significantly undercut their argument.
Christopher Krueger, a senior assistant attorney general who represented Brown at the hearing, was forced to admit that his boss agreed with the anti-gay marriage folks --that Prop. 8 was a legal amendment to the constitution. One justice even asked Krueger what side Brown was actually on. It was a serious blow to the pro-gay marriage movement, because the court typically takes the attorney general's opinions seriously. By agreeing with anti-gay supporters, Brown gave the Supreme Court cover to uphold Prop. 8.
Krueger, who repeatedly stumbled over his words and was easily the worst debater at the hearing, then tried to proffer Brown's esoteric argument. Specifically, he said that Prop. 8 should be tossed -- even though it was a legal amendment --because it violated the concept of "inalienable rights" under the state constitution. But most of the justices would have nothing of it, dismissing the argument out of hand. Justice Joyce Kennard, who voted for gay marriage last year, skewered Krueger, noting that Brown's argument rested on out-of-date court decisions from the mid 19th Century.
Clearly, if Brown wanted to help the cause of gay marriage, then today's hearing made it obvious that he needed to stay out of the fight completely or argue that Prop. 8 was an illegal constitutional revision. But by instead taking a position that was obviously unwinnable, Brown helped the anti-gay marriage cause.
Today's hearing provides evidence that Brown's true reason for entering the legal fray may have been to offset the popularity of one of his likely political opponents, San Francisco Mayor Gavin Newsom. Newsom is a strong gay-rights backer and a likely candidate against Brown in the 2010 Democratic primary for Governor. It was Newsom who started the gay-marriage battle when he unilaterally decided to marry gays and lesbians in San Francisco several years ago. But Brown can now say he fought the good fight for gay marriage, just like Newsom, thereby undercutting Newsom's claim to fame.
Brown also has to know that it'll be a tough, complicated argument for Newsom to make that the attorney general helped the anti-gay forces -- while calling for Prop. 8 to be overturned. So congratulations, Jerry, for your brilliant and cynical master stroke. You made a path for yourself to the governor's mansion while helping set back the cause of equality at the same time.