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Did the attorney general office sabotage California's marriage initiative?

The original marriage initiative of California evolved into Prop 8 to a Supreme Court ruling that had a lot of intrigue along the way.
The original marriage initiative of California evolved into Prop 8 to a Supreme Court ruling that had a lot of intrigue along the way.

Political gamesmanship is part of the landscape and a pivotal decision by California’s attorney general’s office either set out to sabotage California’s marriage initiative or to force an ultimate vote on gay marriage. Either option demonstrates that political expediency was the prime motive which is an abuse of power.

Gay advocacy became a major plank of the Democratic party later as the push to change the definition of marriage to include same sex couples took a dramatic turn with Vice President Joe Biden forcing the hand of President Barack Obama shortly before the 2012 election. That action became a watershed moment because only after Obama’s support, voters finally began approving same sex marriage referendums at the state level.

However California’s same sex marriage vote was forced without qualification from the voters when an initiative called “The California Marriage Initiative”, which would make marriage between one man and one woman the legal status for marriage in the Golden State, qualify for the ballot. Ten of thousands of registered voters signed the petition endorsing the one man one woman standard.

But when the marriage initiative reached Jerry Brown’s attorney general office, at the least some political maneuvering took place when the wording was changed from “marriage between one man and one woman” to the infamous wording of Proposition 8 which stipulated “makes gay marriage illegal”.

This hijack of cause helped to fuel support not only for gay marriage, but it galvanized the political machine of the Democratic party and many gay advocacy groups to undercut the popular support that put the initiative on the ballot in the first place. Hardly a mention of the word change was presented by the media.

As conservative groups gathered support to vote for the marriage initiative, they were suddenly forced to vote against gay marriage when that was not what qualified for the ballot. In the history of political dirty tricks, this abuse of power by the attorney general’s began a string of circumstances that basically destroyed resistance to gay marriage.

Support for the marriage initiative was a robust 62%-38% before the wording was changed. Proposition 8 passed, but at a much lower 52%-48%. The marriage initiative born as a result of judicial advocacy eroding traditional marriage was going to die a death by the same process instead of by vote of the people.

The wording of the attorney general’s office diluted support of Prop 8 where people were forced to be in a position of being painted anti-gay and hateful if they voted in favor of Prop 8. Religious groups were marginalized as bigoted for supporting an initiative that was negatively twisted to be a vote against gay marriage. This was not what initiative supporters signed up for.

Stacking the deck against Prop 8 then continued to be a game of the California’s attorney general’s office who then decided not to defend Prop 8 although it was the attorney general office’s wording that put the legality of gay marriage on the ballot.

Although there were already measures on the books concerning the marriage definition in California, the attorney general’s office refusal to do the job that it promised to do with the oath of office to protect and defend state regulations was unprecedented..

More judicial advocacy could be declared when Judge Vaughn Walker overturned California’s Prop 8 because of its constitutionality, however Judge Walker failed to disqualify himself due to a conflict of interest since he was gay and in a long term same sex relationship.

In all fairness, Judge Vaughn never allowed his personal interests interfere with his judicial decisions, but failing to disclose his sexual preference gives the impression of prejudice in his decision. As important as Prop 8 would become as a test case later for the US Supreme Court, the stigma of having a bias would remain.

The Unites States Supreme Court agreed to hear cases involving Prop 8 and DOMA or the Defense of Marriage Act. California’s attorney general’s office call to not defend Prop 8 at the state level would be pivotal later on in the Supreme Court decision.

The Supreme Court threw out portions of DOMA that were discriminatory to same sex couples as it should have. However, the Supreme Court refused to hear California’s Prop 8 because it was not defended by a public official, but private citizens. The Supreme Court thus let stand the decision by Judge Vaughn, a curious decision since the Supreme Court agreed to hear the case originally.

Gay marriage was put to a vote because California’s attorney general’s office postured with wording which forced Californians to do so. Then by not defending what the California voters wanted even after the suspect wording change, it forced the issue all the way to the Supreme Court.

If the wording change defeated Prop 8, they would get what they wanted. And if Prop 8 went to litigation, they still would get what they wanted. It was a brilliantly contrived political strategy that covered all options.

Unfortunately that is not the role and purpose of the attorney general’s office.

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