Prop 8 fallout

PROP 8 FALLOUT…. Because nothing says “pro-family” like tearing apart thousands of legally married couples.

Sponsors of the California ballot measure that banned same-sex marriage are seeking to nullify thousands of marriages between gay and lesbian couples performed after the state Supreme Court ruled them constitutional.

The sponsors Friday filed responses to three anti-Proposition 8 lawsuits with the state Supreme Court. The briefs also defend Proposition 8 against opponents’ legal challenges, including an argument that the amendment needed a constitutional convention to be added to the state’s constitution.

“We are confident that the will of the voters and Proposition 8 will ultimately be upheld,” said Andrew Pugno, General Counsel for ProtectMarriage.com and the Proposition 8 Legal Defense Fund.

This was bound to happen, but it doesn’t make it any less jarring. It’s not enough for these activists to prevent people from getting married, they also believe the state has to nullify existing marriages that are already on the books and which were legal at the time. It reflects a painful degree of callousness.

On the other hand, California Attorney General Jerry Brown is pushing back, urging the state Supreme Court to invalidate Prop. 8, declaring that “the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification.” Brown is responsible for upholding the state’s laws, and Brown said last month that he planned to “defend the proposition as enacted by the people of California,” but has come up with a compelling legal reason not to.

The California Constitution protects certain rights as “inalienable,” Brown wrote. Those include a right to liberty and to privacy, which the courts have said includes a person’s right to marry.

The issue before the court “presents a conflict between the constitutional power of the voters to amend the Constitution, on the one hand, and the Constitution’s Declaration of Rights, on the other,” Brown wrote.

The issue “is whether rights secured under the state Constitution’s safeguard of liberty as an ‘inalienable’ right may intentionally be withdrawn from a class of persons by an initiative amendment.”

Voters are allowed to amend other parts of the Constitution by majority vote, but to use the ballot box to take away an “inalienable” right would establish a “tyranny of the majority,” which the Constitution was designed, in part, to prevent, he wrote.

It’s a fairly straightforward pitch: there are certain rights that are not subject to popularity contests. This is one of them.

By the way, the lawyer who’ll argue against gay marriage at the state Supreme Court? None other than Ken Starr. Yes, that Ken Starr.

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Steve Benen

Steve Benen is a producer at MSNBC's The Rachel Maddow Show. He was the principal contributor to the Washington Monthly's Political Animal blog from August 2008 until January 2012.