The Will of the People Is Sacred Unless It Gets a Blowjob

So the 'respected' 'legal' 'scholar' Ken Starr doesn't like Attorney General Jerry Brown's reasoning on Proposition 8, which of course is just another reason to like Jerry Brown. Starr blathers on about "a constitutional revolution" and "the precious right of the people to determine how they will be governed"--the same thing we've heard hundreds of times before from the sort of people who think the courts have no business upholding the constitution.

Brown does a very interesting thing in his brief, defending Proposition 8 from the technical challenge advanced by gay rights organizations (their argument being that it was a 'revision' rather than an 'amendment' to the state constitution) while offering an entirely different (and, to me at least, more persuasive) basis for overturning the proposition (that the proposition is in conflict with the state constitution on a very fundamental level).

I like Brown's argument for a couple of reasons, not least of which is the fact that it parallels my own thoughts about it. More... Prop 8 doesn't alter the constitutional basis for the Supreme Court's ruling; it just changes the result. (In effect, it was a bunch of voters sticking their fingers in their ears and saying 'LA LA LA I can't hear you'.) That means there is now an internal conflict in the state Constitution, between the equal protection clause (as interpreted by the Court) and a brand new section mandating discrimination. Brown gets that:

Brown said he was particularly struck by the idea that a ban on same-sex marriage conflicted with the Constitution's language protecting liberty, noting that the state Supreme Court ruled earlier this year that the language encompasses the right for same-sex couples to marry.

"The more I reflected on the argument, the stronger I thought it was," he said. "What is a guarantee worth if you can strip it away by calling it an amendment?"

I have no idea which argument against Prop 8 is more likely to be successful (or if there's any chance for either), but Brown's would certainly be a better win--that is, it would be more likely to gain acceptance because it addresses the substance of the thing, rather than invalidating it on what most people would see as a technicality.

Prop 8 supporters, needless to say, are unpersuaded by Brown's arguments:

Prop. 8 proponents...argued that if the attorney general's argument prevailed, it would be virtually impossible for voters to amend the state Constitution whenever the courts determined that inalienable rights were involved. [emphasis added]

Well, yeah--isn't that exactly the point?