Joining with counterparts from five other states and the District of Columbia, state Atty. Gen. Kamala Harris has filed a friend-of-the-court brief in the U.S. Supreme Court implicitly arguing that California’s ban on racial preferences by state universities is unconstitutional.
Harris, it will be remembered, also refused to defend the constitutionality of Proposition 8, which banned same-sex marriage. In fact, after the U.S. Supreme Court ruled that proponents of Proposition 8 lacked standing to appeal a lower-court ruling striking down the amendment, Harris officiated at the marriage of two of the Proposition 8 plaintiffs.
The brief filed by Harris and the other attorneys general sides with supporters of affirmative action in Michigan who persuaded the U.S. 6th Circuit Court of Appeals to strike down that state’s ban on racial preferences -- a clone of Proposition 209, which was adopted by California’s voters in 1996. Like Proposition 209, Michigan’s ban was the result of a voter initiative to amend the state constitution.
The 6th Circuit said that Michigan’s ban on racial preferences was unconstitutional because it “reorders the political process in Michigan to place special burdens on minority interests.” The court explained that although supporters of preferential admissions policies for athletes or the children of alumni need only lobby school officials, advocates of racial preferences would have to organize a lengthy effort to amend the state constitution.
The brief signed by Harris echoes the 6th Circuit’s reasoning, which is in conflict with a decision by the U.S. 9th Circuit Court of Appeals upholding Proposition 209. If the Supreme Court were to accept the 6th Circuit’s analysis -- which is unlikely -- Proposition 209 also would fall.
It isn’t just in California that state attorneys general have criticized or declined to defend laws they disapprove of. In July, Pennsylvania Atty. Gen. Kathleen Kane announced that she wouldn’t defend that state’s ban on same-sex marriage, which in her view conflicted with the U.S. and state constitutions. The Washington Post noted in its story about Kane’s announcement that she had “endorsed the idea of gay marriage while running for her post.”
If you think there’s a problem with state attorneys general refusing to defend the laws of their states -- and I do -- perhaps the solution is to take those officers out of politics. The joke among political journalists is that AG stands for “aspiring governor.”
An elected attorney general naturally will be tempted to take legal positions that enhance his or her popularity with voters; an attorney general appointed by the governor would be less susceptible to such pressure. But that sort of AG also would be less in demand to preside over weddings.
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