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California Att?y Gen Says Non-Discrimination Is Unconstitutional

Jerry Brown (remember him?) ? once California governor, now California Attorney General, and possible future California governor ? says in a letter to the California Supreme Court that the prohibition against preferential treatment based on race or gender that was added to the California Constitution by Prop. 209 is unconstitutional.

To the extent that the prohibitions against race- and gender-based discrimination in article I, section 31 of the California Constitution (hereafter referred to as section 31) are aligned with the prohibitions enforced under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, section 31 is constitutional. However, to the extent that section 31 is interpreted more broadly to bar race- or gender-conscious programs that would be permissible under the Fourteenth Amendment, it violates the Equal Protection Clause of the federal Constitution....

Brown?s argument seems to be identical to one the ACLU and NACCP tried, most recently, in Michigan, to no avail.

Closer to home, it also seems to be identical to one even the Ninth Circuit all but laughed out of court in rejecting a challenge to Prop. 209 right after it passed. As the opinion by Judge O'Scannlain put it:

.... Proposition 209 amends the California Constitution simply to prohibit state discrimination against or preferential treatment to any person on account of race or gender. Plaintiffs charge that this ban on unequal treatment denies members of certain races and one gender equal protection of the laws. If merely stating this alleged equal protection violation does not suffice to refute it, the central tenet of the Equal Protection Clause teeters on the brink of incoherence.

It appears that Jerry Brown is asking the California Supreme Court to decide who is incoherent, Jerry Brown or the Fourteenth Amendment. The choice would seem to be clear, but then nothing is completely clear in California.

Full post as published by Discriminations on April 23, 2009 (boomark / email).