In the painful aftermath of the passage of Prop 8 in California, it’s nice to see things heading in the right direction in Connecticut. Today is the first day for same-sex marriage in the Nutmeg State.
Meanwhile, on the left coast, there’s a legal battle brewing over whether Prop 8 was a permissible change to the state Constitution. Apparently, this turns on an arcane point of California constitutional law:
[O]pponents of Proposition 8 argue that this kind of change is a “revision,” not an “amendment.” The distinction is important, legal experts say, because revisions require two-thirds approval in the Legislature and then a popular vote. Amendments can be approved by popular vote only.
If, as opponents say, the court finds that Proposition 8 qualifies as a revision, then the proposition would be found unconstitutional because its proponents would have, in effect, skipped the required legislative step. If the court strikes down the initiative on these grounds, it is not certain the lawmakers would take up the issue again.
If the court sides with Proposition 8 proponents and allows the amendment, the recourse for gay rights activists would be to put the matter to voters again through their own initiative or take the matter to federal court, something most activists are not ready to do, given the court’s current composition.
Very interesting. Any California con law experts out there? In any event, it’s nice that the Governator has come out strongly against Prop 8 — but annoying that he could have helped to defuse the whole thing by signing the bill that has twice been laid before him that would have legalized same-sex marriage legislatively. Why he thought it was a good idea to veto that bill in favor of letting the courts do it is beyond me.
There is a massive protest against Prop 8 planned for Boston.
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p>Saturday, Nov. 15
1:30pm
Boston City Hall
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p>This protest is part of http://www.JoinTheImpact.com
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p>People all across the country, in every state, will be protesting against Prop 8 and for marriage equality, at the same exact time. I hope this terrible loss in California turns into some good by propelling the fight for LGBT equality into the next stage.
An awkward scene in the offices of the pro-8 forces as they learn their multi-million dollar effort has been bounced back because they failed to get legislative approval in advance.
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p>Here’s hoping.
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p>I assume they knew they needed this approval, but didn’t think they could get it, or didn’t want to spend the time, and decided to put the issue to the voters anyway.
first off, your right – they knew they could never get 2/3 of the legislature to approve, since the legislature had TWICE passed marriage equality legislation.
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p>second, they began the initiative campaign before the cali supremes made their ruling, so didn’t have the benefit of the information in formulating strategy.
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p>third, it was worth it for the haters to roll the dice since from what i’ve read, past similar challenges have been dismissed by the court. however, not on the heels of a powerful topical decision just months before. but again, they didn’t know that cali supreme court would rule against them in may.
Can we wait to see if the Court decides they needed legislative approval before you assume “they knew they needed this approval” or start to theorize how ineffective or arrogant they were for not getting it?
as if no legislative approval was needed, since it was clear that they would not get it. i wouldn’t call that arrogant so much as playing the cards they were given.
can be found here.
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p>I suppose the legal challenge on this ground is inevitable, but I hope not.
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p>Anyway, if I recall correctly, the issue was already before the courts, posed as a constitutional issue, at the time that the Governor vetoed the bill, and he was constrained by California law from allowing legislation to circumvent the courts.
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p>I noted at the time that it is frustrating that you had a legislature poised to pass SSM, and a governor disposed to support it, but for naught, all because of another round of silly substantive due process/equal rights litigation.
He still is. That’s why, although he said months ago he opposed prop 8, he never bothered to say another word about it until after the vote. How convenient for him.
Arnold could have signed the bill. The legislature did pass SSM. He vetoed it, lamely claiming that he thought the courts should settle it. He ducked the issue, and now is trying to straddle both sides. I cannot imagine that he was somehow “constrained by California law” from signing a bill that was duly enacted by the legislature. If you’ve got a contrary link, I’d love to see it. ‘Til then, Arnold wussed out.
I’m afraid I don’t have time to hunt down authorities, but the substance is:
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p>California approved Proposition 22 in 2000, which defined marriage as heterosexual, only.
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p>The California constitution, unlike Massachusetts, does not permit a ballot question to be reversed by traditional legislation. Another ballot question is needed, unless the provision is otherwise unconstitutional. Hence, the need to defer to the courts. They could undo Prop 22, but the legislation vetoed by the governor would and could not.
he could have signed the legislation, knowing it would be ruled unconstitutional but making a powerful statement for equality. he chose otherwise, then spoke up for hater mccain before the election and equality after the election. could it be any clearer that he’s playing a game for personal political gain?
I do not support government officials engaging in useless, costly behavior just for symbolism. Had he decided to do this, then attys at the AG’s office would have had to waste a year or three defending the thing. A complete waste of time and money in a state that can afford neither. No different, in my mind, than local officials wasting time adopting resolutions on the Iraq war, or illegal immigration, or the impeachment of the President, rather than working on the problems they were actually elected to do.
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p>I agree that he could have been a lot more vocal, and shouldn’t be on your best buds list. But by the same token, he was no Mitt.
is always a waste of time and no place for a governor. Good point.
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p>True he was no Mitt in that Mitt is ham-handed. Arnold is much smarter at political shiftiness.
Devoting government resources to pure empty symbolism is a waste of time and resources. Full stop. Better to save the money and give it to a homeless shelter.
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p>There is a risk to choosing to attempt the establishment of political rights through litigation, rather than through the political process. That risk is that the political process might leave you in worse shape than when you started. Happened in Hawaii. Came thisclose to happening right here in Massachusetts. Happened in California.
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p>The constitutional right to abortion is, even after 35 years, still in perpetual jeopardy because it has no ability to achieve political legitimacy.
because even if he thought it was a waste of time to sign the marriage legislation, he had a perfect opportunity when he vetoed it (twice) to stated his strong support of equality. he demurred. so when it comes to his “support” of equality, he’s either a liar or a wuss.
You’re right about that. For silence, if not for signing that bill. No denying that. Worse, because he isn’t going to run for anything else, and has no need to worry about GOP primary challenges.
Sarah Palin signed a law giving same-sex couples where one partner works for the state the benefits of married couples. I don’t think anyone believes that she did this because she supports gay rights. She was told that if she didn’t sign the law, then it would go to the courts and they would produce the same outcome as signing the law, but after wasting a fair bit of money on legal proceedings. Governors really do sometimes consider whether a law will be modified by the courts before deciding how to act on it.
đŸ˜‰
It was mainly about preventing the state from recognizing same-sex marriages performed in other states, since CA law already banned same-sex marriage and prop 22 was only a statutory change rather than a constitutional one. Arnold could have signed the legislation, which would have probably lead to court challenge arguing that prop 22 implicitly also banned same-sex marriage within the state, which it’s unclear how that would have been resolved. (Earlier court rulings related to this question were mixed.) Either way the point was rendered moot by the later CA supreme court ruling legalizing same-sex marriage.
You mean if they did it wrong you’d rather it stand as is in error? You do understand the the ‘wasting of time’ here is due to the petitioners proceeding on suspect procedural grounds, not the after-the-fact effort to resolve the disposition of the petition into legal conformity, right?
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p>I think it’d be more reasonable to ‘hope’ that people wouldn’t have put the initiative forward in the first place in such a suspect manner.
The caption doesn’t identify her, but on the right is Mary Bonato, one of the GLAD attorneys whose brilliant minds won us marriage in MA and now CT. Mary, you are my hero. Thanks Mary & GLAD for all you continue to do to make “equality of the laws” have meaning.
i meant. oops. đŸ™‚
EQUAL PROTECTION OF THE LAWS. there, did i get it right this time? if you’re confused, see the 14th amendment to the u.s. constitution.
The provision for amending the Constitution is here. It says that either the legislature can propose by two-thirds (section 1) and submitted for a majority vote (section 4) or done through the initiative process (section 3). Though the language is “amendment or revision”, I do not see any distinction made relative to procedure.
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p>The provision for initiatives is here. The initiative requires signatures of 8% of the electorate for amendments to the Constitution, but only 5% for statutes (section 8), but again no reference to a distinction between an amendment and a revision. Initiatives require a majority vote of the electorate (section 10) and I find no difference for constitutional amendments/revisions.
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p>If anyone can find something I missed, feel free to say so. Meanwhile, I say equality advocates should focus on repealing the amendment in the next cycle. I get the sense that it’s better to be playing offense on something like this, but as far as I can tell Prop. 8 was legitimately passed:(
by whatever means necessary. Why isn’t winning through the courts “playing on offense?” And why should the state’s gay people be forced to wait another 2 years just for the hope of getting married, when it very well could happen by the end of next week. It’s all a rather moot point, too, considering the fact that this is going to the courts and it does have a decent shot of winning.
I’ve said before I think these laws all violate the 14th amendment anyway. If the Supreme Court won’t say so then the notoriously liberal 9th circuit is a pretty good shot. By offense in this context I just meant that it’s easier on questions like these (and I can’t prove it, just gut) to be on the side pushing a question rather than pushing against it. If the state court finds a way around this I certainly won’t be complaining.
If they appealed to the federal level and won in the 9th circuit (or won in the California SC on the 14th amendment), then that would be overturned by the US Supreme Court. Anything based on the US Constitution has to wait until the makeup of SCOTUS changes.
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p> – Dan
constitutional passages, judicial decisions or other legal thingies the “amendment vs. revision” argument is based on, you can read the court filings here.
My basic question would be why this wasn’t resolved BEFORE it was even allowed on the ballot?
for judicial review of initiatives before they go to ballot. canada has a mechanism whereby proposed legislation can get judicial opinion first, but nowhere in the usa as far as i know. this is why states like cali are in such a mess – legislation by initiative too often leads to unconstitutional or poorly thought out law. same happens up here in washington – lots of court time wasted because the courts frequently have to examine and invalidate patently unconstitutional crap that the passionate mob insists on ramming into the law books. because you know, we elect our legislature but don’t approve of anything they do, apparently.
at least the AG has to certify that initiatives don’t violate certain procedural rules — that might have caught this “amendment/revision” thing if CA had a similar certification procedure.
you can also get a synopsis of the reasoning from a real live lawyer here.
What exactly would be the purpose of an amendment that is not a revision? It seems like anything that didn’t fundamentally change the state constitution could be done as a statute.
the legislature would refuse to pass that statute? that’s the situation with marriage discrimination in cali (legislature passed a pro-equality bill twice, so isn’t likely to pass an anti-equality one). and i think that’s the whole point of the initiative system – to do an end run around the legislature.
A CA citizen initiative can be either a statute or a constitutional amendment — in fact, prop. 8 and prop. 22 were almost identical except for that distinction, and neither one has to be passed by the legislature.
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p>So what’s an example of an issue that contradicts the state constitution enough that it can’t be a statute but not so much that it has to be a revision?
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p> – Dan
you will take the time to read the arguments submitted to the cali supreme court. i linked to them above. after you do your research, come back and fill us in.
Those documents explain why Prop. 8 should have been a revision. That is not my question.
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p>My question is what under this system is an amendment?
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p>What I’m wondering is why they even allow amendments that are not revisions. It seems to be something that just causes confusion.
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p> – Dan
maybe if you find a blog dedicated to california law you’ll find what you’re looking for. it should be clear by now that no one here can answer your question. waste of time asking it over and over again. good lick, and let us know if you find anything enlightening.