Two politically-symbolic figures of the late 20th Century are now squaring off in the California courts in the ongoing battle over Proposition 8 — the voter-approved California initiative that banned gay marriage. The latest twist: its backers want the courts to nullify any gay marriages performed so far.

In one corner, California Attorney General Jerry Brown, the former Governor seemingly-ridiculed into political insignificance by the since-deceased “Tonight Show” late-night talk-show host Johnny Carson as “Governor Moonbeam,” a one-time wave-of-the-future type who started out being perceived as a serious Presidential primary candidate but crashed and burned amid too-high media expectations and laugh-getting comedy club punchlines. But Brown rose again in a new incarnation as Oakland’s innovative and highly-praised mayor, is now California’s Attorney General — and has an eye on running for Governor of the broke-state again.

In the other corner, Ken Starr, the man Democrats love to hate who went after and got part of President Bill Clinton’s scalp — a heroic litigator to many Republicans, but considered an ideology-driven tool of conservatives and the organized far-right get-Clinton movement by Clinton supporters. Now he’s dean of Pepperdine University’s law school.

This heightens the drama on an issue that clearly is a no-compromise issue to both sides: the issue of whether to legally recognize gay marriage and bestow upon same-sex relationships the same kinds of legal rights bestowed upon traditional marriage.

But now there is this new twist — one that will heighten the polarization level on this issue even more: Prop 8’s backers want to in-effect de-marry any gay couples who were married before the constitutional amendment passed:

The sponsors of Proposition 8 asked the California Supreme Court on Friday to nullify the marriages of the estimated 18,000 same-sex couples who exchanged vows before voters approved the ballot initiative that outlawed gay unions.

The Yes on 8 campaign filed a brief arguing that because the new law holds that only marriages between a man and a woman are recognized or valid in California, the state can no longer recognize the existing same-sex unions. The document reveals for the first time that opponents of same-sex marriage will fight in court to undo those unions that already exist. Starr’s brief was blunt: “Proposition 8’s brevity is matched by its clarity. There are no conditional clauses, exceptions, exemptions or exclusions,” reads the brief co-written by Kenneth Starr, dean of Pepperdine University’s law school and the former independent counsel who investigated President Bill Clinton. The campaign submitted the document in response to three lawsuits seeking to invalidate Proposition 8, the constitutional amendment adopted last month that overruled the court’s decision in May that had legalized gay marriage in the nation’s most populous state. Both Attorney General Jerry Brown, whose office is scheduled to submit its own brief to the court Friday, and gay rights groups maintain that the gay marriage ban may not be applied retroactively.

Brown has taken some heat because he had defended the state’s ban. But as the L.A. Times notes, he has now moved swiftly to seek to scuttle Prop 8 with the same energy that he had previously defended the state’s old official position:

California Atty. Gen. Jerry Brown asked the state Supreme Court on Friday to invalidate the voter-approved ban on gay marriage, declaring that “the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification.” Brown’s argument on Proposition 8, contained in an 111-page brief filed at the last possible moment before the court’s deadline, surprised many legal experts. The attorney general has a legal duty to uphold the state’s laws as long as there are reasonable grounds to do so. Last month, Brown said he planned to “defend the proposition as enacted by the people of California.” But in his filing, Brown, who personally supports same-sex marriage, offered a novel legal theory to back his argument that the measure should be invalidated. The California Constitution protects certain rights as “inalienable,” Brown wrote. Those include a right to liberty and to privacy, which the courts have said includes a person’s right to marry. The issue before the court “presents a conflict between the constitutional power of the voters to amend the Constitution, on the one hand, and the Constitution’s Declaration of Rights, on the other,” Brown wrote. The issue “is whether rights secured under the state Constitution’s safeguard of liberty as an ‘inalienable’ right may intentionally be withdrawn from a class of persons by an initiative amendment.”

Law professor Jonathan Turley (whose blog should be required-reading for anyone even remotely interested in law) sees some problem areas for Brown here:

Brown’s position creates an interesting issue of legal ethics and obligations. It is the duty of the Attorney General to defend duly enacted laws. Otherwise, you have a curious situation where a state’s laws are not defended by the state. In this case, the state is actually arguing against its own law. Brown’s position between the earlier and current litigation seems hopelessly conflicted. It would have been more consistent if he refused to defend either the earlier law or current law. Yet, there is the problem of lawyers defending a law that they consider to be unconstitutional. Brown can argue that, once the Court recognize the constitutional right of same-sex couples in the Constitution, it became a problem to have it set aside by popular vote. The earlier law was the result of legislative consensus while this is the product of popular vote. Yet, there status as “law” is the same for the purposes of the Attorney General’s office. I strongly opposed Proposition 8. Yet, Brown’s reversal does raise some troubling question of who will defend the law for the state. The move to invalidate marriages is even more troubling. The idea that the majority can invalidate marriages is a form of majoritarian tyranny. Couples are allowed to rely on the existing law — whether created by the legislature or the courts. These advocates may be committing a serious blunder. Just as gay rights advocates were criticized for pushing too hard and too fast on the marriage issue (triggering a backlash), these advocates have selected the worst possible issue to take to the courts. Even conservative judges will likely be bothered by this retroactive move. It is also a move that could result in a federal constitutional loss — taking the issue out of the state constitutional confines.

KTVU calls Brown’s reversal “stunning”:

Attorney General Jerry Brown made a legal u-turn on Friday on Proposition 8. He had been expected to defend the ban on same-sex marriage in front of the California Supreme Court. Friday was the deadline for supporters of the measure to respond to a lawsuit that argued Prop 8 is a revision of the constitution, not just an amendment. Instead the Attorney General’s said when his office began looking at it they quickly decided it was an amendment. But they said they determined it was an unconstitutional one that violates a fundamental right to the pursuit of happiness. The attorney general’s office determined it should be stuck down. Brown said “What we’re saying is, that the people can change the constitution but they can’t strip away a fundamental liberty unless they can demonstrate a compelling interest. Well the court has already ruled there is no compelling interest.”

But the two factors to keep in mind here are clear: (1) Brown has long reportedly supported same-sex marriage and (2) a slew of news stories and websites suggest he’d like to be running the state again. Proposition 8 won with lots of out-of-state money and some of the political dynamics at play on Nov. 8 might not be at play if he runs for governor.

Is he mending his political fences and making political calculations as well as following his own reported personal beliefs?