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CA Marriage Equality Fight: Ballot Initiative Unlawful, Says Legal Analyst

by: Killer of Sacred Cows

Tue May 27, 2008 at 20:12:58 PM PDT

(It'll be interesting to see what comes of this. - promoted by Lucas O'Connor)

In an analysis published today on both Metnews.com and the Log Cabin Republicans blog, Kevin Norte wrote a scathing analysis of the legal issues behind the anti-equality initiative which is currently working its way through validation proceedings and aimed at the California ballot in November. Norte has been a research attorney for the Los Angeles Superior Court since 1991.

According to Norte's analysis, the initiative cannot legally proceed to the ballot because it constitutes a revision, not just an amendment, of the California Constitution.

If this is the case, then the GLBT people of California have nothing to fear from this ballot initiative. It's already dead in the water. It's a moot point. Even if it was passed, it could not be enforced. It's already as archaic as the anti-sodomy, anti-miscegnation and Jim Crow laws are.

More after the jump...

Killer of Sacred Cows :: CA Marriage Equality Fight: Ballot Initiative Unlawful, Says Legal Analyst
Norte cites several sets of case law, but what it boils down to is that California citizens can amend the Constitution by ballot initiative, but they cannot change the fundamental parts of it (such as fundamental rights granted, and fundamental workings of the government) by ballot initiative. Changes of that scale are called revisions, and revisions can only be accomplished by a constitutional convention and popular ratification of the changes made by the convention, or by the Legislature passing the change and submitting it to the electorate for popular ratification.

With the CA Supreme Court ruling on May 15th, marriage was reaffirmed as a fundamental right in California, and furthermore, sexual orientation was placed into a protected category, subject to strict scrutiny. Therefore, a ballot initiative cannot take away that fundamental right, because that kind of a change is a revision of the Constitution, necessitating a constitutional convention. Additionally, any attempt to do so will come under the heading of strict scrutiny, which means that the government must show a compelling reason why it is excluding people from marriage. That cannot be done; there is no compelling reason. Ron George and his fellow justices made sure that they eliminated those arguments in their majority opinion.

The kicker? This:

Therefore, Schwarzenegger, Bowen, Leno and Newsome should use their constitutional powers to obtain an opinion of the Attorney General as to whether the initiative is an amendment or a revision that would revise the fundamental right to marry as it applies to same gender couples because it would remove that right for them and deny gays and lesbians equal protection as it applies to that fundamental right.

In other words, they're going to have to ask Jerry Brown his legal opinion on this, and then follow it. Jerry Brown, mind you. The champion of the little guy and the minority.

Thank you, Ron George and the other justices who ruled for us. You set this ruling in stone six ways from Tuesday, and the way the law in California works, there's no way the bigots can countermand you. You have done an amazing thing for the people of this state.

I can hardly wait to see how this pans out.

(Please recommend this diary. Send the links above to your state representatives and senators, too, if you're in California. It's important that the message get out there that there's a real, legal, constitutional basis for denying the ballot initiative a space on the ballot, regardless of the number of signatures.)

Thanks are owed to a good friend of mine, Joe Decker, on LiveJournal, who spotted this and pointed it out to others. Thanks also to UTBriancl for asking me to re-post this Daily Kos diary here on Calitics. I'm honored.

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welcome to calitics! n/t (5.00 / 1)

Thanks (4.00 / 1)
I appreciate you cross-posting this here.  I think this argument has merit, but it needs a bit of fleshing out on the legal end. However, it could be a nice bulwark post November. Hopefully, we can get some more detail on this case law at issue here.

I think?

[ Parent ]
My Take (4.00 / 2)
I'm not sure the correct route is to ask Jerry Brown to decide whether the initiative is a revision or an amendment.  In fact, I am almost certain (although I have not researched the issue yet) that Jerry Brown does not have the power to remove the initiative from the ballot even if he decides that it is a "revision."

The determination of "amendment" vs. "revision" is one that will need to be made by the Supreme Court.  Most likely, this will occur only if the initiative passes.  I doubt the CA Supreme Court will tackle this issue unless they absolutely must.  

Previous CA Supreme Court decisions create a murky distinction between "revision" and "amendment."  It is by no means a black and white issue.  

I am planning to write more about this once I clear some things off my plate.  Maybe this weekend.  

Jerry Brown will give the opinion (5.00 / 1)
But Debra Bowen will be the one with the authority to remove it from the ballot.  

[ Parent ]
Under what authority? (0.00 / 0)
Like I said, I have not yet done the research.  But I am very skeptical about the power of either the AG or the SOS to pull an initiative from the ballot on the ground that the AG has rendered an opinion that the initiative is unconstitutional.  I'm betting that only the Courts have the power to do that (by way of an injunction).

I would be happy to be proven wrong.

[ Parent ]
And let's say that Bowen/Brown refuse to certify (5.50 / 2)
on that basis.  Everyone who thinks the anti-marriage industry won't be in court the very next day challenging that action, raise your hand...

[ Parent ]
True, but I'd bet the courts (0.00 / 0)
will say "This cannot be decided by ballot initiative. Convene a constitutional convention."  

[ Parent ]
Hmmm (0.00 / 0)
I'm not sure that they can really do that.

I think?

[ Parent ]
Please read the linked analysis (0.00 / 0)
by Kevin Norte here. It explains how it's Brown's job to decide whether it's legal and Bowen's job to pull it from the ballot if it isn't.

[ Parent ]
I've read his analysis (0.00 / 0)
While this analysis sets forth a good argument for why the initiative, if passed, should be invalidated by the Courts, it does not cite any legal basis to support the proposition that either the SOS or the AG have the authority to pull the initiative from the ballot.  

Deciding the constitutionality of an initiative must be the job of the Courts, not the AG or the SOS.  

[ Parent ]
The Author's Note (0.00 / 0)
I read the entire article on the Log Cabin Republican Blog (Is Hell Dreezing Over?), the the solution is in the NOTE.  Here it is:
"AUTHOR'S POST NOTE- The George Court has already determined that  pre-election review is not precluded when the challenge is based upon a claim that the initiative may not properly be submitted to the voters because it amounts to a constitutional revision rather than an amendment.  (Independent Energy Producers Assn. v. McPherson (2006) 38 Cal. 4th 1020, 1029 (unanimous decision & opinion written by Chief Justice Ronald George).)
"What should a local government do if it believes an initiative measure is unlawful and should not be presented to the voters? (Save Stanislaus Area Farm Economy v. Board of Supervisors (1993)13 Cal.App.4th 141, 149.)  A governmental body, or any person or entity with standing, may file a petition for writ of mandate, seeking a court order removing the initiative measure from the ballot. (See Farley v. Healey[] [(1967)] 67 Cal.2d [325,] 327, 62 Cal.Rptr. 26, 431 P.2d 650.) But such entity or person may not unilaterally decide to prevent a duly qualified initiative from being presented to the electorate."


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