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  • « Gay marriage the wrong way | Main | Revising and amending, Calif. style »

    May 19, 2008

    The ballot measure boobytrap

    Posted by: Chris

    Prop22Every analysis I've read of last week's California gay marriage ruling (including my own) has assumed that the November ballot measure amending the state constitution would "overturn" the decision handed down this week. I wonder about that.

    The proposed amendment will go on the ballot if the secretary of state confirms there are enough valid signatures on petitions that have already been submitted by proponents. The text of the amendment is the same as Proposition 22, the 2000 ballot measure overwhelmingly approved by voters, which changed the state law but not the state's constitution. It reads:

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

    If the amendment is approved by voters in November, it would sweep aside the portion of the supreme court's decision that opened up marriage to same-sex couples. But there's no particular reason I see that it would also overturn the crux of the opinion: that having separate legal regimes for gay and state couples violates the constitution (in three different ways no less!).

    In fact, the court specifically left open the question "whether the name 'marriage' is invariably a core element of the state constitutional right to marry so that the state would violate a couple's constitutional right even if -- perhaps in order to emphasize and clarify that this civil institution is distinct from the religious institution of marriage -- the state were to assign a name other than marriage as the official designation of the formal family relationship for all couples."

    There's wiggle room there, but if voters amend the state's constitution to prevent gays from marrying, it's hard to see how the same four justices wouldn't conclude that the only way to pass constitutional muster is to open up "domestic partnerships" to straight couples and eliminate civil marriage entirely in the state.

    Now wouldn't that be fun to watch! Gay marriage foes in California best be careful what they wish for…



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    1. SteveW on May 19, 2008 1:00:40 PM:

      The Log Cabin Republicans have a legal theory for why the court decision means that the Secretary of State should not place the proposed amendment on the ballot for November. The California constitution permits "amendment," but not "revision," by referendum. The LCRs argue that, because of the new court decision allowing marriage equality, the proposed referendum would be a revision, instead of an amendment. If the court had not already ruled on the issue, then the referendum would have been an amendment. The process for revising the state constitution is more difficult than the process for amending it.

      It's a bit murky to me, but the details are here.

    1. Galois on May 19, 2008 4:06:46 PM:

      I thought that if two parts of a constitution seem to be in conflict, the rule is the more specific statement supercedes the more general. The court has already said such a provision conflicts with the right to liberty, right to privacy, and equal protection rights of the California Constitution, and thus its passage would cause a conflict and the new provision would win out. So as far as marriage and same-sex couples are concerned there would no longer be any rights in the California Constitution that would apply. So I can't see the court accepting a challenge on those grounds.

      It is still possible, though, that they would say that the inequality violates the US Constitution's rights to liberty and equal protection. They couldn't apply strict scrutiny based on sexual orientation on federal grounds as the US Supreme Court has rejected it, but they could say the right to marry under Federal law applies to same-sex couples. This would open up the case for appeal though to US Supreme Court and so I doubt any organized gay rights group will bring such a case.

      Steve raises an interesting issue regarding revision vs. amendment, though.

    1. Father Faggot on May 19, 2008 5:04:08 PM:

      Your point makes a lot of sense; however, that does not mean it will prevail.

    1. Christopher on May 19, 2008 6:08:24 PM:

      If this law does go into effect in a few weeks does anyone know if it will allow a US Citizen to marry someone from another country? My boy friend is from the Ukraine and is only here on a work visa, would be wonderful to marry him and have him able to stay in the US with me.

    1. Christopher on May 19, 2008 7:05:35 PM:

      If this law does go into effect in a few weeks does anyone know if it will allow a US Citizen to marry someone from another country? My boy friend is from the Ukraine and is only here on a work visa, would be wonderful to marry him and have him able to stay in the US with me.

    1. Chris on May 19, 2008 8:23:54 PM:

      Steve W: That's very intriguing. I'll check out the link.

      Galois: My very hazy recollection from law school is that the law of statutory interpretation you're referring to (specific trumps general) is secondary to another: recent trumps previous. Either way the ballot measure would prevail in a conflict. But my point is the conflict is only with the court's ruling on marriage, not its core ruling that gays and straights should be recognized under the same institution.

      Christopher: I believe the answer is yes, you can. But the marriage will have no effect on his immigration status because the Defense of Marriage Act signed by Bill Clinton in 1996 blocks any sort of federal recognition of gay marriages. It might even make his situation worse, if it makes immigration officials suspect he will overstay a temporary visa if his is renewed. I don't know the details about that, though. You really should talk to an immigration attorney or contact Immigration Equality (http://www.immigrationequality.org)

    1. The Gay Curmudgeon on May 19, 2008 8:33:24 PM:

      Sorry Christopher, the short answer is that this state Supreme Court ruling does nothing to help you and your boyfriend with immigration.

      You'll be able to marry, but it has no force or impact under Federal law (which governs things like immigration). There isn't a special visa class for same-sex couples in the U.S. that allows partner immigration. Otherwise our host and his sweetie along with every other bi-national same-sex couple in the U.S. would have moved to Massachusetts long ago.

      I'm lucky that I was able to get permanent residence in the U.S. through an international transfer with my employer. I'm doubly lucky that as an Australian Citizen I can apply for a visa (called an Interdependency visa) to get my partner permanent residence in Australia if it were necessary.

      Chris (our host) has written fairly extensively on the injustices and challenges of being in a same-sex bi-national relationship. I recommend spending some time ferreting out and reading his previous posts on the subject.


    1. The Gay Curmudgeon on May 19, 2008 9:03:17 PM:

      My interest was piqued when I came across the “revision versus amendment” post from the Log Cabin Republicans also.

      When I read the majority opinion I was focused on the differences between the CA and WA Supreme Court Rulings - everything that WA got wrong, CA got right - but after re-reading it several times the construction of the rationale for equal access to the same institution seems carefully tailored to the reality we are moving towards. It's almost like a Second Act cliff-hanger.

      It seems just too good to be true that we might get a Third Act where the anti-equality forces might, in an attempt to "save" marriage, end up destroying it instead and see it replaced with civil unions.

      After all, if the rights and responsibilities of civil unions are exactly the same as marriage, as equality opponents are constantly telling us, then they will take their own advice and settle for civil unions themselves.



    1. Out of Darkness on May 19, 2008 11:27:51 PM:

      Does it really matter all the ink poured out to date over the gay marriage decision in California? Each one sounding more erudite than the next. In the end the bottomline is the same, man is once again remaking God's law.
      Until a man-made decision in the seventies, homosexuality has always been considered a disorder. The only thing that has changed is that a bunch of very wounded people came together and threw money at their problem.
      But to no avail because the problem is within. No matter what is done to change the outside the internal dilemma of homosexuality will continue to persist until resolved with help.
      Two individuals who prefer to live out their homosexual longings rather than seek help to resolve them are plainly and simply living outside of God's will. The day will come when the Piper will show up to be paid for God himself says he will NOT be mocked lest we forget.
      My views are to be silenced at all costs by the wounded who have tantrums like spoiled children if anyone dare call them on the veil of deception clouding their view. The problem here is far from an intellectual one, after all the authors of the gay agenda are Harvard grads, it is an emotional one, deeply wounded people are being denied the help they need by a selfish few just as deeply wounded if not more so.
      How do you sleep at night?

    1. Geena on May 20, 2008 12:33:39 AM:

      >How do you sleep at night?
      With two cats.

      If the California Supreme Court through out marriage for civil unions, wouldn't that open the door for opponents to go federal? Which proponents wish to avoid.

      No one seems to have a handle on what occurs if the ballot measure is approved, so either way if you have marriage plans, get to California by November.

    1. ted on May 20, 2008 2:51:42 AM:

      Geena / Out of Darkness -- I sleep with three cats and my husband. The only "wounded" one is our ancient cat, Hermia, who has arthritis. And I have a little tendinitis in my fingers from all the typing. If only they'd taught me how to type at Harvard; I'd probably be able to type more efficiently and less painfully. The school did teach me to write, and how to make an good argument -- emotionally, intellectually, and religiously. If only Out of Darkness could learn grammar and logic and read the New Testament instead of Leviticus, this blog would be so much the better.

    1. Strict Scrutiny on May 20, 2008 10:36:37 AM:


      Your theory is interesting. However, if the right to marry is a fundamental liberty protected by the D.P. clause of the 14th amendment of the federal constitution (Zablocki, Loving), don't you think that will win out in the end?

      So, CA abolishes marriage and everyone has civil unions. Some disgruntled straight guy goes to federal court and files suit under 42 USC 1983 arguing that the State of California has violated his fundamental right to get married.

      If that happened, I think the federal judiciary might rule that the new "civil unions only" CA scheme violates the federal constitution. The CA constitution cannot be interpreted in a way which violates the federal constitution. So then we're back to square 1.

    1. Kevin Norte on Jun 23, 2008 1:03:51 PM:


      Since the LGBT leaders have adopted the "revision" versus "amendment" argument in their Petition to the CA Supreme Court for a Writ to Remove the Initiative From the Ballot, I guess we will know by mid-September if it has any merit or not (the decision has to be made prior to the ballot going to the printers).

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