Atty Gen Jerry Brown: Marriage is "an insignificant label"

Attorney General Jerry Brown: Marriage is an “insignificant label”

"The Attorney General fails to explain why ... the state and its allies are working so hard to ensure that lesbians and gay men remain excluded from it,” counters San Francisco city attorney.

[[jerrybrownmarinsig.jpg]]Do homosexual couples suffer any "constitutional injury" from being legally ineligible to obtain marriage licenses?

California Attorney General Jerry Brown, in briefs filed with the state Supreme Court on Aug. 17, argues that marriage is a "constitutionally insignificant label" because, he says, same-sex domestic partners do not “lack” any benefit which would be supplied by legal marriage.

Same-sex marriage advocate Geoff Kors of Equality California indicated to the Aug. 23 Bay Area Reporter that such objections are remarkably weak and obviously conflict with the state's stance in another court case. "The state and attorney general took the position in the AB 205 legislation that domestic partnership and marriage are significantly different," said Kors.

And if the notion of "marriage as a constitutionally insignificant label" were indeed true, San Francisco City Attorney Dennis Herrera argued that "the Attorney General fails to explain why ... the state and its allies are working so hard to ensure that lesbians and gay men remain excluded from it.”

The case, known as In re Marriage, emerges from the situation which arose in February 2004 when San Francisco Mayor Gavin Newsom directed city officials to issue marriage licenses to same-sex couples. Later that year, the state Supreme Court invalidated the licenses, but without addressing whether it was legal for the state to define marriage as a union of a man and a woman in the first place. The court instructed the city to file a new lawsuit to raise just that question.

Now Attorney General Brown has asserted that "the California Constitution does not contain a specifically enumerated right to marry," arguing likewise that there’s nothing in the California Constitution that would prevent the state from withdrawing all benefits from marriage -- which would leave “marriage” so legally insignificant that “domestic partnership” would be the only form of spousal or quasi-spousal union actually honored by the state.

As governor, Brown signed legislation in 1975 that repealed criminal penalties for adultery, oral sex, and sodomy between consenting adults, a landmark in statewide homosexual rights.

"That was one of the most courageous things anyone has ever done. He made all consensual sex acts legal. You won't find anyone else from the 1970s making those kinds of courageous decisions," Brown’s spokesman, Ace Smith, told the Bay Area Reporter. "He has one of the most courageous pioneering record in GLBT rights anywhere in the country."

Assemblyman Mark Leno (D-San Francisco), the author of the California gay marriage bill, which passed the state assembly in June, explained, "This is now a core Democratic moral value. We've brought it center stage. The party passed a resolution in support of marriage equality at its convention last April, and it won't be very long before every Democrat with credibility could not run in this state without supporting a woman's right to choose and supporting marriage equality."

The state Supreme Court will not consider Brown’s and other arguments until later this fall, or in early 2008.

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