California Supreme Court agrees with …


… me … see my post on the anti-gay marriage initiative at:

https://freelegaladvice.wordpress.com/2008/06/25/california-anti-gay-marriage-initiative/

… and, coincidentally, with proponents of the anti-gay marriage initiative.

The court, ruling in Bennett v. Bowen, Case No. S164520, denied a petition to remove the initiative from the ballot, rejecting the petitioner’s argument that the initiative would “revise” rather than “amend” the constitution.

Article 18, section 3, of the California constitution says:

“The electors may amend the Constitution by initiative.”

On the other hand, constitutional “revisions” can only be submitted to the voters by a two-thirds vote of the legislature. Article 18, section 1, of the constitution 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.”

Inasmuch as the same sex marriage initiative was placed on the ballot via the initiative process, without having been proposed by the legislature, a determination that it was a “revision” of the constitution, rather than an “amendment”, would have required that it be removed from the ballot.

Proponents of the initiative argue that it is appropriate for the “democratic process” to decide the issue, as assertion with which I have a fundamental disagreement.

The so-called “democratic process” (that is, deciding an issue by having the people vote on it), is entirely appropriate when, from among two or more choices one and only one must be selected. The most obvious example being the election of someone to hold a particular political office. Only one person can be president; therefore, the “democratic process” is appropriate for this purpose — we all vote and the person who gets the most votes is elected.

Oh, wait, bad example … getting “the most votes” doesn’t always get you elected president. Just ask Al Gore. We really don’t even elect our most important political figure by the “democratic process” after all, do we? But, I digress. The point is, only one person can hold any particular office, so we vote to decide who it will be.

HOWEVER, where from among two or more choices, it is not necessary to make the same choice for everyone, the “democratic process” is not only unnecessary, but often unconstitutional and occasionally even dangerous.

Marriage is one of those issues regarding which it is not necessary (or even desirable) to choose one and only one result for everyone. There is neither a logical nor a legal — nor even a socially compelling — reason to impose on everyone the same standard of who they can (or cannot) marry.

Oh sure, there is a religious basis for objecting to gay marriage, but religion is perhaps the worst of all foundations on which to base social policy. Which is to say nothing of the fact that our government is constitutionally prohibited from doing so. And while the people of California can amend the state constitution to deny equal rights to gays, they cannot — by themselves — amend the federal constitution.

Bottom line, even if this initiative is approved by California voters in November, the question will remain whether the provision violates the equal protection clause of the federal constitution. In my opinion, it does. Eventually, the U.S. Supreme Court will be called upon to decide the issue. And based on the intensity with which it is being addressed by both sides, I expect that the court will have to do so sooner, rather than later.

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3 thoughts on “California Supreme Court agrees with …

  1. Welcome back, Michael. You are correct, of course, that the primary motivation for the 14th Amendment was to protect against racial discrimination by the states.

    On the other hand, the pertinent language cannot be read to protect only against racial discrimination:

    “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

    This language clearly imposes on the states the same obligation to provide due process of law and equal protection to ALL persons as is otherwise required of the federal government.

    In short, it should not have taken another amendment to allow women the right to vote. Nevertheless, the fact that it did does not mean that it is appropriate to now deny equal rights to some people because women were so long denied theirs.

    For the full text of the 14th Amendment, see:

    http://caselaw.lp.findlaw.com/data/constitution/amendment14/

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

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