Tuesday, June 24, 2008

How Strict California Refs?

If the anti-marriage equality sorts can ever be said to operate in good faith, that may apply to their ballot initiative effort to put an constitutional amendment before California voters in November. Yet, they love their gotcha! politics and this time, it may be they who end up on the wrong side of process.

They started this effort before the state Supreme Court legalized same-sex marriage. While their intent is certainly malicious, they did try to get it on the ballot. The rules include gathering signatures with wording the secretary of state's office approves, wording that accurately reflects the impact of any changes.

Subsequently, the court decision has substantially altered that. There are impacts, particularly to existing laws. The suit by pro-equality sorts calls for a do-over for the signatures to give voters a chance to decide accurately.

As usual, I turn to the NYU law professor/expert Arthur S. Leonard. He's been on this situation.

Under California law, initiatives are pretty much a steamroller that generally don't stop after they qualify for the ballot. No one, not governor, legislature, secretary of state nor attorney general can pull one off the ballot. That takes a court order.

According to the secretary of state's report on 91 years of these, through 2002 (page 9 of the 115 pager):
  • 1,187 ballot initiatives circulated
  • 290 qualified for the ballot
  • 3 were removed by court order
So the odds for the pro-equality petitioners are very long. Leonard writes that it's "hard to say" how the high court there will rule. However, he adds that he was favorably impressed by the two-pronged argument.

First, the high court not only invalidated the family code one-man/one-woman marriage wording, it ruled that in this case, homosexuals were a suspect classification legally, with marriage as a fundamental right. They specifically deserve legal consideration as a group. Thus, would stripping them of an existing right be more than a simple amendment, be a constitutional revision? As Leonard writes, "...this proposed initiative, unlike those that have survived judicial review in the past, works a direct deprivation of a fundamental right on a class basis."

If so, rules much more akin to the Massachusetts initiative ones would kick in. Normally under California's lax initiative and referendum rules, a simple amendment is an up or down, simple majority at the ballot. If the court rules this is a revision, however, each house of the state legislature would have to approve the revision by a two-thirds majority. Then it would go on the ballot. Alternately, it could pass at a constitutional convention and then by plebiscite to take effect.

This is still more relaxed that Massachusetts' version that requires passage of identical wording in two consecutive years. However, the additional requirements certainly would be enough to kill this.

Leonard concludes, "I’m certain that Alliance Defense Fund and Liberty Counsel and the others who were working so hard to try to prevent the Supreme Court’s decision from going into effect will do their darndest now to submit persuasive arguments as to why 'the people' should be allowed to vote to deprive their fellow citizens of a fundamental right along suspect classification lines...One hopes the court sees through that argument and decides that only the more deliberative process of the legislature or a constitutional convention should be the mechanism for this question to be addressed further by California."

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Anonymous said...

Your link to Arthur Leonard's page take me to a yahoo sign in page.

Do you know if the court has a set time limit for ruling on this? I'd hate to see our side drag their feet in getting organized because they're waitin & a-hopin.

massmarrier said...

Thanks for the click correction. That seemed to have been a rare TinyURL glitch. I put in another that seems to work.

The high court there hasn't said when it will rule. However, they've been real responsive, much more than the Massachusetts courts were in similar circumstance.

I see the tiny number of court orders. Yet, there are two excellent arguments here.

Rick Hoyt-McDaniels said...

thanks for helping me learn something about the law in my own State. Who would have thought that there would be a distinction between an Amendment and a Revision? Don't amendments always revise?

Obviously the people who signed the petitions believe that marriage should be only available to male/female couples and the court ruling since that time wouldn't make any difference to their opinion. So I would say that the initiative itself is still valid.

But the argument is compelling to me that the initiative process is itself no longer appropriate for removing a right granted by the constitution to a suspect class of persons. It's always baffled me and many people I know that our California Constitution could be so easily changed (well "amended" but not "revised").

A court ruling against the initiative would intensify shouts of "judicial activism" but I do agree with you, and would be happy to see, that such a decision would be the end of the matter in California. I'll eagerly await the ruling.