UPDATE: Article by the San Francisco Chronicle’s Bob Egelko.
California State Attorney General Jerry Brown today filed a brief (PDF) with the state Supreme Court today opining that article 1, section 31 of the California Constitution (Prop. 209) is unconstitutional as applied in certain circumstances.
The letter brief was filed in response to the Supreme Court’s request for an opinion regarding Coral Construction v. City and County of San Francisco, a case pending before the Court concerning whether San Francisco’s attempt to remedy longstanding exclusion of minority- and women-owned businesses in its public contracting violates article I, section 31.
The letter stated: “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, pursuant to Washington v. Seattle School Dist. No. 1 (1982) 458 U.S. 457 (Seattle) and Hunter v. Erickson (1969) 393 U.S. 385 (Hunter). To that extent, section 31 would create an unequal political structure based on race and gender that is not narrowly tailored to achieve a compelling governmental interest.”
“It is unclear precisely what governmental interest section 31 was intended to serve,” the letter also stated. “If it is the interest in protecting all Californians from discrimination based on race or gender, that is concededly a compelling governmental interest. However, there appears to be no factual basis to support a governmental interest in denying preferences that are permissible under the Fourteenth Amendment.
“Ironically, by effectively disadvantaging racial minorities and women in the political process, without an evident compelling governmental reason for doing so, section 31 seems to accomplish the very evil it purported to eliminate, viz. racial and gender discrimination.”
The Equal Justice Society and the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, on behalf of a coalition of more than 60 organizations and individuals advocating against the constitutionality of Prop. 209, applaud Attorney General Jerry Brown for his position on this issue.
We will continue to argue that the state Supreme Court should take this opportunity to strike down Prop. 209, an initiative responsible for much harm to communities of color, women and to California as a whole.