« The ballot measure boobytrap | Main | Desperately hitting 'San Francisco values' »
May 20, 2008
Revising and amending, Calif. style
Posted by: Chris
Thanks to a tip from reader Steve W., we learned that the Log Cabin Republicans have come up with the unusual claim that the ballot initiative that would amend the California Constitution to ban gays from marrying may itself be unconstitutional.
The argument, as explained by Kevin Norte on the LCR blog, is one of those that only a lawyer could love:
The initiative power reserved by the people by amendment to the [California] Constitution … applies only to the proposing and the adopting or rejecting of laws and amendments to the Constitution’ and does not purport to extend to a constitutional revision. …
The proposed [marriage amendment] initiative originally sought to limit the Constitutional right to marry to opposite sex couples and, thus as originally drafted, it was intended to limit the right to marry to a man and a woman. But an amendment can no longer accomplish this. The Right to Marry exists and in light of the recent ruling, the initiative’s unintended consequence is an attempt to revise (as opposed to amend) the Constitution which, as explained in [last week's Supreme Court ruling], is a fundamental Constructional right to “all individuals and couples, without regard to their sexual orientation.”
Got that? The California Constitution permits voters to pass ballot initiatives that "amend" the Constitution but not those that would "revise" it. Norte argues that originally the ballot measure that may go on the November ballot was "amending" the Constitution to make clear gays can't marry. But after last week's ruling, that same initiative would be "revising" the Constitution, which is not permitted.
Norte and LCR get points for ingenuity, and I'll say in advance that I haven't researched the issue myself, but based on what Norte himself has said, this dog won't hunt.
The cases cited by Norte define "revision" -- as opposed to "amendment" as changes that "will substantially alter the basic governmental framework set forth in our Constitution." Re-excluding gays from marrying, even though it impacts a fundamental right, certainly isn't the type of change in the Constitution that substantial alters California's governmental framework.
Hey, it's worth a shot, guys. I'm personally more fond of my own clever little argument about why the ballot initiative may backfire on its anti-gay proponents.
TrackBack
TrackBack URL for this entry:
https://www.typepad.com/services/trackback/6a00d834527dd469e200e5525c14148834
Comments
-
Hey, may a thousand (poisonous) flowers bloom in this fight. The other side will go into overdrive with every hair-brained scheme to thwart us. Nothing like this level of pluck to mass our own onslaught. Indeed, for once we are getting to defend a massive piece of won legal territory, and (for once!) without the political ground arrayed completely against us. We might as well gather a gigantic stash of every imaginable weapon and be prepared to use every one of them.
-
The planned vote is like a reality TV show. I would never have dreamed that we would have a vote in this country to see whose marriage should be terminated (assuming the court ruling goes into effect before the November vote). The proposed vote would curtail at least two basic rights granted by the constitution: equal protection and the right to marry. It is really unthinkable, which is why I think the "revision" argument has merit and should be vigorously pursued.
Otherwise, who will be voted off the island next week?
-
Gosh... I hope this amendment fails! Which is why I hope to spend part of my summer trying to defeat it!
-
CHRIS,, Regardless of your personal opinon on this issue, now that the "D" leaders have followed the legal theory first published by a "Log Cabin Republican" (look i am not your father's LCR member if you knew me like Ryan J. davis does), I hope that you can fully support the community's decision. REMOVING A FUNDAMENTAL RIGHT of any kind restructures the California Constitution and such restructures require a more deliberative revision process.
-
davis does), I hope that you can fully support the community's decision. REMOVING A FUNDAMENTAL RIGHT of any kind restructures the California Constitution and such restructures require a more deliberative revision process.
-
beautiful girl and handsome man haha,i love it!
-
Like your blog, I learned a lot here, hope you can share more information
-
i thought it should be fail!
-
sounds good ! i love that
The comments to this entry are closed.
Kevin on May 20, 2008 8:16:53 AM:
Hey, may a thousand (poisonous) flowers bloom in this fight. The other side will go into overdrive with every hair-brained scheme to thwart us. Nothing like this level of pluck to mass our own onslaught. Indeed, for once we are getting to defend a massive piece of won legal territory, and (for once!) without the political ground arrayed completely against us. We might as well gather a gigantic stash of every imaginable weapon and be prepared to use every one of them.