Constitution or Will of the People?

Peter Henderson at the Globe & Mail:

California Attorney General Jerry Brown unexpectedly joined the fight to reverse a ban on gay marriage, telling the state Supreme Court on Friday the voter-approved ban violates the constitutional right to liberty.

Proposition 8, which limits marriage to a union of man and woman, was approved by California voters last month. It stopped same-sex marriages and sparked a legal battle that has reached the state’s top court.

The same court opened the door to gay marriage in a ruling over the summer. Only two states, Massachusetts and Connecticut, now recognize same-sex marriage, and most have banned such unions. California’s ban struck a chord with gay advocates, sparking national protests.

Mr. Brown, a former California Democratic governor, said the California court’s summer ruling allowing gay marriage led the way to his argument.

“The right of same-sex couples to marry is protected by the liberty interests of the constitution,” Mr. Brown said by telephone, referring to the ruling. “If a fundamental right can be take away without any particular justification, then what kind of a right is it?”

Mr. Brown had not explained his constitutional interpretation before and had been expected to defend the ban.

“We are disappointed to see the attorney general refuse to defend the will of the voters as the law instructs him to do,” said Andrew Pugno, lawyer for the team defending the ban. In a sign Mr. Brown’s move is far from the end of the battle, Kenneth Starr, whose investigation of U.S. President Bill Clinton led to impeachment, joined the legal team defending the ban.   [more]

In my very humble opinion, neither a legislature nor a democratic vote can override the US Constitution.

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