California Anti-Gay Marriage Initiative


Today I received the following email and inuiry from a fellow West Pointer, Ed Colchado, Class of ’76:

Jim,

What is your opinion of recently filed suits to bar the November initiative on the basis that the “measure would change the state’s Constitution so profoundly that it would amount to a revision. Under the law, the Constitution cannot be revised by initiative alone – a two-thirds legislative approval is also needed before the measure goes to the voters.”

Do you believe this argument has merit?

Ed Colchado ’76

I replied to him as follows:

Ed —– Interesting question which, frankly, I had not considered prior to receiving your inquiry. I did some research on it today, however, and don’t see much merit to the argument.

The California Constitution has two provisions for amending/revising its terms. Article 18, section 1, says in pertinent part:

“The Legislature by rollcall vote entered in the journal, two-thirds of the membership of each house concurring, may propose an amendment or revision of the Constitution and in the same manner may amend or withdraw its proposal.”

Article 18, section 3, addresses the initiative process as follows:

“The electors may amend the Constitution by initiative.”

The initiative measure would add Article 1, section 7.5, to the California Constitution (which, ironically, would put it between section 7, the equal protection clause, and section 8, the anti-discrimination clause). The full text of the proposed provision is:

“Only marriage between a man and a woman is valid or recognized in California.”

It is the case that a constitutional revision may be initiated only by a two-thirds vote of the legislature and that the initiative process may only be used to amend, not revise, the constitution.

There is nothing in the California constitution which defines either of those terms, but it is apparent that some distinction between them is intended. Common sense interpretation of the language (to which resort may be taken when there is no other source of explanation) implies that “revision” is something more extensive than “amendment”.

“Amendment” implies a change to a single provision; “revision” implies rewriting the document and in the process changing more than a single provision. Interpreting the two terms in this way is consistent with the language of Article 18, making the more extensive (and potentially more disruptive) process of “revision” more difficult to undertake than the less extensive process of “amendment”.

Getting to your question then, it is clear to me that the proposed amendment, if passed, would establish a tension between competing provisions of the constitution itself.

It appears to be inconsistent with the equal protection clause, Article 1, section 7, which says in pertinent part:

“A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws ….”

And, while not directly contrary to the provisions of Article 1, section 8, the anti-discrimination provision, it does seem to be contrary to the spirit of that provision, which reads:

“A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin.”

However, IMO the inconsistency between the equal protection clause and the proposed marriage provision does not, in an of itself, amount to a constitutional “revision”. It does not “revise” or even modify any existing provision of the constitution. And to the extent that it is inconsistent with the equal protection clause, that inconsistency is with only a single provision of an otherwise extensive document (the California constitution is far more comprehensive and therefore much longer than its federal counterpart). No other provision of the constitution would be effected by the passage of this initiative.

The legal effect of that inconsistency can appropriately be considered and resolved by the California Supreme Court. Ultimately, of course, the U.S. Supreme Court may be called upon to determine whether the provision violates the federal equal protection clause.

However, I see no legal merit in this argument for keeping the initiative off the ballot in November.

Jim Reilly

__________________________________

The anti-gay marriage initiative is measure number 07-0068. The full text of the initiative is:

“Only marriage between a man and a woman is valid or recognized in California.”

The official State of California, Office of the Attorney General, website on initiative measures is at:

http://ag.ca.gov/initiatives/activeindex.php?active=A

There is a link on that site to each of the proposed initiatives.

For the Wikipedia discussion of initiative, see:

http://en.wikipedia.org/wiki/Limit_on_Marriage_Amendment

The California Constitutional provisions referred to in this post are available at:

Article 1: http://www.leginfo.ca.gov/.const/.article_1

Article 18: http://www.leginfo.ca.gov/.const/.article_18

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5 thoughts on “California Anti-Gay Marriage Initiative

  1. Thanks for commenting Michael, but I’m not clear on what you mean. While there probably are some “homosexual fundamentalists”, I would guess there aren’t many … and most of them are probably not revealing their sexual orientation.

    And, while members of the homosexual community might try to keep the initiative off the ballot, it wouldn’t be for the purpose of preventing gay people from voting, but to insure that their right to marry is not taken away.

    It also seems likely that religious fundamentalists, for the most part, would want the initiative on the ballot, hoping that it will pass (and necessarily, in the process, giving gays the opportunity to vote on the issue).

  2. Pingback: California Supreme Court agrees with … « Free Legal Advice Isn’t Worth What You Pay For It …

  3. It is important to note that amendments were used to reinstate the death penalty, restructure the state’s property tax system, legalize gambling on Indian reservations, and even extend equal protection into the areas of employment, housing, and education by the state.

  4. Pingback: There is no Gay Marriage “Slippery Slope” | Free Legal Advice Isn't Worth What You Pay For It …

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