Jerry-Mandered

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California Attorney General Jerry Brown (Photo: Getty Images)

California Attorney General Jerry Brown (Photo: Getty Images)

As federal Judge Vaughn Walker gaveled the courtroom to order Monday morning, an attorney next to me leaned over and noted that the date -- 01-11-10 -- is a palindrome and wondered if it meant something mystical?

Who knows? But it was quite extraordinary to hear the intimacy of questions posed to witnesses on this opening day in court.

“What does it mean to be a lesbian?” What does domestic partnership mean to you compared to marriage?” Those questions were put to Kristin Perry, the Perry in Perry vs. Schwarzenegger, by her attorney, Theodore Olson in a federal courtroom Monday afternoon.

Olson gave an emotional opening statement, saying that preventing gay and lesbian couples from marrying relegates same-sex relationships to second-class citizenship. "Badges of inferiority that stigmatize their relations as unequal and less worthy," said Olson.

And how about the defendant – the Arnold in Perry vs. Schwarzenegger? When it came time for his attorney to give his opening statement he walked to the microphone and said simply: “We have none, your honor.”

The governor is declining to defend Prop. 8, and Attorney General Jerry Brown -- whose job it is to defend state laws -- even went so far as to declare Prop. 8 unconstitutional, just as the plaintiffs charge.

Judge Walker challenged the deputy attorney general: “If the Attorney General thought this was unconstitutional, why did he allow it to get to the ballot box?”  In other words, why didn’t he declare it such before the election?

Deputy Attorney General Tamar Pachter insisted that wasn’t Jerry Brown’s job, and that the AG is only supposed to write the ballot title and summary of initiatives. Judge Walker seemed incredulous and asked Pachter to submit a legal brief outlining why that wasn’t the AG’s responsibility.

It recalled the treatment Brown’s attorney got before the California Supreme Court when he declined to defend Prop. 8 there as well. His deputy in that case seemed ill-prepared, even uncomfortable making Brown’s case before the justices.

These incidents highlight the political conundrum facing Jerry Brown as he prepares a possible run for governor. His “base” by and large supports gay marriage and opposed Proposition 8. But the legal and political gymnastics he’s performing on this issue could signal problems for him down the road.

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