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...Friday, Brown's legal brief ignited a statewide debate among legal scholars, with discussion of the argument dominating law professor list-servs and e-mail lists. "It's creative and contains thoughtful insights," says Vikram Amar, a constitutional law professor and dean of academics at the University of California-Davis. "It profoundly highlights the almost paradoxical character of American constitutionalism: That minority rights exists only to the extent that the majority stands behind them...
Amar told TIME that Brown's argument seeks to set barriers around those basic liberties in California - even against popular referendums. But Amar said it remains to be seen how many, if any, of the seven justices see things his way. Yet Brown's brief will be taken seriously, he said, and will undoubtedly influence the opinion once the closely divided court rules. "It certainly helps gay marriage supporters," he added...
...marriage in May, it declared that ""The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of the majorities and officials and to establish them as legal principles to be applied by the courts." Brown has apparently now taken that as a touchstone, arguing that some rights cannot be taken away by the majority, absent special circumstances. "The Declaration of rights in Article I gives certain rights a privileged status," Brown told TIME. "Those rights, including the right to marry, are in a unique position...
What would it take to take away such an "inalienable right"? Brown said that's up for the Courts to decide, but it would probably take something more like what is required to amend the U.S. Constitution, a three-fourths vote, for instance. "There has to be a special burden imposed on an effort to take away these rights," he said. "Prop 22 [the previous initiative banning gay marriage] passed with 61% of the vote, and yet the Supreme Court said it was invalid. You can't just come back with [November's] 52-48 vote and write the same...
...Brown said reaction to his position has been mixed, with supporters of gay marriage obviously cheering. Others, he said, have been less excited. But after more than four decades of public life, and no plans to quit anytime soon, Brown seemed to relish the historic significant of the case. "Isn't this what the Federalist Papers were all about? What Madison was after?" Brown told TIME. "These questions go back to the beginning, back to Justice Marshall and the question of judicial review, to Marbury v. Madison. This is a topic of constant constitutional inquiry: What is the role...