Governor Moonbeam is back, reincarnated as California’s Attorney General.
“During two terms as Governor of California and two failed bids for the presidency,” Time Magazine wrote back in 1989, at the beginning of his political rebirth,
Jerry Brown, to some, symbolized visionary political leadership. To others, unmoved by his fascination with Buckminster Fuller’s visions of the future and the small-is-beautiful theories of E.F. Schumacher, Brown was a weirdo they called “Governor Moonbeam.” After losing a 1982 run for the Senate to San Diego Mayor Pete Wilson, he dropped out of politics and set off on the political equivalent of a penitent’s sojourn in the desert. He went to Mexico to learn Spanish, studied Zen meditation in Japan and worked with Mother Teresa in Calcutta. “I had such a negative reputation that every time I stood up someone would call me Moonbeam,” Brown explains.
As I hope this recent post made clear, everyone should start calling him Moonbeam once again. That’s because, as I discussed briefly there, he’s trying to persuade the California Supreme Court that the provision of California’s Constitution (enacted by the Prop. 209 initiative) prohibiting discrimination against, or preferential treatment of, any individual or group based on race, ethnicity, or sex violates the Equal Protection Clause of the 14th Amendment, and thus that, as I put it in my previous post, the Ninth Circuit (yes, the Ninth Circuit) was wrong when it “all but laughed [that argument] out of court” in 1997 and that the California Supreme Court was mistaken when it unanimously rejected that argument in 2000.
I return here to Governor, now Attorney General, Moonbeam because Sharon Browne, an attorney with the Pacific Legal Foundation, has submitted a letter brief to the California Supreme Court demolishing Brown’a argument. It was once believed, or at least said that the moon is made of green cheese, but Ms. Browne has blown so many holes in AG Moonbeam’s argument that what’s left of it makes the holiest Swiss cheese look solid by comparison.
At least AG Moonbeam does not attempt to make up a new argument out of whole cloth. On the contrary, he simply repeats an argument that has been rejected by every appellate court that has heard it — the two mentioned above, plus this one where, in upholding Michigan’s Prop. 2, the Sixth Circuit said that “In the end, a law eliminating presumptively invalid racial classifications is not itself a presumptively invalid racial classification.”
AG Moonbean attempts to balance the stool of his argument on two legs, one wobbly and far too short and the other too thin to support any weight at all. The too–short wobbly one is known to lawyers as the Hunter/Seattle doctrine, based on two Supreme Court cases: a 1969 case (Hunter) where the Court struck down an Akron, Ohio, charter amendment that took away from the city council the power to pass ordinances against housing discrimination without first getting majority approval of Akron voters; and a 1982 case (Seattle) the Court invalidated a state initiative that barred school boards from assigning students beyond their neighborhood schools. Both measures, the Court reasoned, involved racial classifications that prevented minority voters from addressing racial problems.
Browne makes mincemeat (if, abandoning cheese, I can mix my food metaphors) of this argument, quoting the courts that have rejected it. “The laws in Hunter and Seattle were struck down under the Equal Protection clause,” she writes,
because they created explicit racial classifications and expressly altered the political decision-making process in ways that facilitated racial discrimination on the part of citizen-voters. In contrast, Secition 31 [of the California Constitution] is a racially neutral policy measure that prohibits government racial classification and discrimination, and leaves the political decision-making process untouched….
The other leg of AG Moonbeam’s two-legged stool, the one that is too thin to support any weight at all, is his argument that the California Constitution may not prohibit any policy that the Federal Constitution allows. This argument is like a rampant weed: after being killed in one place it keeps sprouting up in others. It misses, in every iteration a fundamental fact not altered by continually attempting to deny it — that the Federal Constitution does not require what it merely allows. As Browne writes, the Attorney General’s position
reflects a presumption that the California Constitution cannot prohibit race- or sex-based discrimination that would be permissible under the Fourteenth Amendment. To the contrary, this Court has consistently held that the Federal Constitution provides a floor, not a ceiling, to the protection of individual rights under the California Constitution. Consequently, the Attorney General’s repeated concern that Section 31’s ban on racial and sexual discrimination is broader than the protections afforded by the Fourteenth Amendment is irrelevant to this Court’s deliberations.
Indeed, the California Constitution even expressly declares (Article I, §24) that “Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.”
AG Moonbeam’s argument that prohibiting racial favoritism is racially discriminatory is so farfetched, Hunter and Seattle notwithstanding, that it is rather like trying to disprove some universally accepted mathematical axioms, such as, for example, “Two things equal to the same thing are equal to each other” and “If equals are added to equals, the sums are equal.” Sharon Browne’s reply brief, in turn, is so powerful that she has done something truly remarkable: she has actually proven an axiom, the Constitutional truth that colorblindness and racial neutrality cannot equal racial discrimination.
