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Official Blog of The Family Policy Council of West Virginia

Judge, General, and Excommunicated

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California AG Brown follows political trend of making the law up as he goes.

By Nathan A. Cherry


Martinsburg – Does the will of the people and the outcome of a statewide vote even matter? If State Attorney Generals can violate their oath of office and Supreme Courts can ignore a legal vote to play party politics then what is the point of having a vote in the first place?


Recent news out of California has stunned many as California Attorney General Jerry Brown filed his own brief for why Proposition 8 should be struck down. This comes after he pledged to uphold and defend the ballot measure that passed in November as part of his constitutional duty.


In reaction to this news the General Counsel defending Prop 8, Andrew Pugno said,


“It is disappointing that the Attorney General has refused to defend the vote of the people as the law instructs him to do. It will take some time to digest this new and unusual legal argument he has created.”


And while Andrew Pugno is disappointed, Brad Dacus, president of Pacific Justice Institute, finds the news “astounding.” He further commented in an article on the Pacific Justice website,


“Just when you hope Attorney General Brown might even half-heartedly fulfill his constitutional duty to defend Prop. 8, he judo-flips the voters. His brief actually calls those who voted for Prop. 8 the ‘tyranny of the majority.’ With the state’s chief law enforcement office becoming a law unto himself, I believe we have a constitutional crisis in our state.”


And what is the “unusual legal argument” that Andrew Pugno needs to digest? Attorney General Brown is saying that since the states constitution guarantees the “inalienable right of liberty,” that that right must take precedence over all other aspects of the state constitution, including Proposition 8. And, in essence, what AG Brown is asserting is that the civil rights of homosexuals are being violated and they are not receiving the liberty guaranteed them by the state constitution of California via the passage of Proposition 8.


But the telling part of AG Brown’s brief is when he stated that he “does not suggest that the Framers contemplated that liberty interests included a right to marry that extended to same-sex couples, the scope of liberty interests evolves over time as determined by the Supreme Court.” Click here for full article.


I’m afraid that AG Brown has bypassed the most legal and reasonable point, the fact that liberty interests do not include a right to marry for same-sex couples, and dovetailed an egregiously erroneous statement to it, “liberty interests evolve over time as determined by the Supreme Court.”


It is not the Supreme Court’s job to determine what is and it not a “liberty interest.” It is the Supreme Court’s job to uphold the Constitution of the United States of America, and to protect the will of the people. Mr. Brown has not only missed that point entirely, he is helping to usurp the will of the people altogether and give legislative powers to a court system dizzy with power.


But the fact remains that marriage of any kind is not a civil right, it is not a guaranteed liberty to any person. And the definition of marriage has been determined for centuries by the people, that definition is, one man and one woman.


Maybe if AG Brown got off the political bandwagon for a few minutes he could apply his law training to upholding the law instead of trying to rewrite it. It is the duty of the Attorney General and the Supreme Court to defend and protect the will of the people. That’s the law, that’s all anyone needs to know. 

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Written by Nathan Cherry

December 26, 2008 at 2:49 pm

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