[JURIST] California Attorney General Jerry Brown [official website] said [opinion letter, PDF] Wednesday that portions of Proposition 209 [text], an amendment to the California Constitution [text] banning the use of affirmative action for state hiring, contracting, or university admission, may violate the US Constitution. Brown made the statement in a letter to the Supreme Court of California [official website] regarding the case of Coral Construction v. City and County of San Francisco [case materials]. The case concerns a plan by the city of San Francisco designed to increase the participation of minority owned businesses in state contracting deals. The plan had been struck down [JURIST report] by the San Francisco Superior Court [official website] in 2004 as being in violation of Proposition 209. In his letter, Brown said portions of the amendment may be unconsitutional under the Equal Protection Clause of the Fourteenth Amendment [LII backgrounders]:

…to the extent that [article I,] section 31 [(Proposition 209)] 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… 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.

Although section 31 impacts legislation that may be in the interest of people of color and women, and alters the established political process with respect to such legislation …the Supreme Court would not find section 31 to be invalid… to the extent it merely adopts the proscriptions of the federal Equal Protection Clause. However, to the extent that section 31 bars race- or gender- conscious programs that would be permissible under the Fourteenth Amendment, it restructures California’s political system regarding affirmative action in a way that unequally burdens women and members of racial or ethnic groups that have traditionally been subjected to discrimination. Thus… it would violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

It is unclear precisely what governmental interest section 31 was intended to serve. 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, 7 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.

It is uncommon for an attorney general to write such a letter to a state supreme court, but in November, Brown also urged court to review the petitions [materials; JURIST report] raised in reference to the passage of Proposition 8 [JURIST report], the voter initiative that amended the state constitution to make same-sex marriage illegal in California. Brown argued that "the petitions raise issues of statewide importance, implicating not only California's marriage laws but also the initiative process and the Constitution itself."