With an 111-page legal brief that has surprised legal scholars, Brown reversed course and repudiated his previous statements indicating he'd likely support the legality of Prop 8. Instead, on Friday, he urged the state's Supreme Court to overturn the vote, a move that would infuriate conservatives who are still white-hot mad over the court's historic 4-3 decision that earlier this year prohibited all forms of discrimination against gays, and mandated the state issue marriage licenses to gay couples. In a wide-ranging interview, Brown told TIME that his view of the legal merits of the case had evolved over the past several weeks, and explained why he now thinks the right to gay marriage in California is as fundamental as such bedrock principles as the right to property and to liberty itself.
"Right from the beginning, it looked like the only question was whether the vote was an amendment to the state constitution or something more, a revision," Brown told TIME, explaining his original stance in favor of Prop 8's legality. "But the precedents for saying that the vote was a revision were very few. Based on that, I didn't think we could call it a revision, and therefore Prop 8 looked valid."
But as his staff of more than 30 lawyers began researching the case, Brown said a few urged him to look at the question from a much broader perspective. "Some of the staff said 'wait a minute, there is another way of looking at this.' The idea was that gay marriage involves a basic liberty interest, rights that formed a foundation for our Constitution, that we enjoyed even before California became a state. That was a new way to look at this." Rights like that, he came to believe, can't be taken away, at least not by something as simple as constitutional amendment by popular vote. Instead, those rights he said, are "inalienable" in the same sense that the Declaration of Independence speaks of inalienable rights.
"The issues raised here go far beyond the issue of same-sex marriage," Brown wrote in his brief. "The question 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rights secured under the state Constitution's safeguard of liberty as an 'inalienable' right may intentionally be withdrawn from a class of persons by an initiative... This litigation, perhaps for the first time, poses a more fundamental question: Is the initiative-amendment power wholly unfettered by the California's Constitution's protection of the People's fundamental right to life, liberty and privacy?" In other words, aren't some rights so sacred that they can't be taken away?
Yes there are, and the right to legally marry the person with whom you have entered into covenant and want to share the rest of your life with is clearly one of them.