California Attorney General Jerry Brown is refusing to defend Proposition 8 from a lawsuit contending that it is unconstitutional. Because he agrees. Therefore Protect Marriage now wants him listed as a plaintiff in the suit, rather than a defendant.
In court papers filed late Friday, Proposition 8 backers argue that allowing Brown to remain as a named defendant in the case “unfairly advances” the challenge to the same-sex marriage ban because, like the plaintiffs, the attorney general maintains California’s law against same-sex marriage is unconstitutional. “As matters now stand, plaintiffs have a party on the other side of this dispute who shares their ultimate goal of invalidating Proposition 8,” lawyers wrote in court documents. “Plaintiffs might well turn the old adage on its head and ask: With enemies such as these, who needs friends?” Scott Gerber, Brown’s spokesman, said the office’s lawyers are reviewing the motion and had no further comment. In numerous legal briefs, Brown has sided with the plaintiffs’ central legal argument that Proposition 8 violates the equal protection rights of same-sex couples seeking the right to marry. It is a rare example of the state’s top lawyer declining to defend a California law in the courts.
A federal district court has scheduled the case for trial in January, which some expect may eventually offer SCOTUS an opportunity to finally hear the issue.