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California's "Proposition 8 - Limit on Marriage Initiative" Should Be Removed From The Ballot

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On June 20th, the attorneys for the victors in California's In re Marriage Cases, filed an Extraordinary Writ in the state Supreme Court seeking removal of Proposition 8 on two grounds. The first ground is that the wording of the initiative itself is outdated and wrong. The second ground is that the initiative is actually a revision masquerading as an amendment in disguise. 

The first issue is basically whether the initiative that was submitted to the Secretary of State and its language approved by the Attorney General, and reviewed by the Legislative Analyst and the Director of Finance prior to the Supreme Court's is valid due to the findings of the Supreme Court subsequent to the petition being circulated. Clearly, prior to the ruling, it was true that there would be no change in the manner in which marriages are currently recognized by the state was valid; but that is no longer true. Supreme Court precedent clearly indicates that pre-election review is necessary for wording issues, otherwise, it is waived.  

But the second ground is of particular interest to me because even if the Supreme Court removes it on those grounds, the initiative could possibly come back and create a "Gay Marriage Industrial Complex" in this state which, like parental notification for teenage abortions, could become an initiative staple in the ballot pamphlets for years to come. What I am reviewing is the possibility that the "amendment" may be permanently removed as a voter driven initiative.

In reviewing the issue of pre-election review to seek the removal of the voter initiative, there appears to be only one manner of pre-election review to permanently remove such a voter initiative from the ballot.  It would be for the court to find that the initiative amounts to a constitutional revision and therefore is not proper as a voter signature driven initiative amendment. The California's Supreme Court (in a 7-0 decision written by the justice who authored the marriage decision) has already unanimously determined 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. 

In 1948, the Court noted that the initiative power reserved by the people by amendment to the 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. 

Years ago an initiative attempted to strip all prisoners of the constitutional rights under the California constitution and limit their rights to those found in the US constitution. The Court found that the initiative went too far because it effected how the state interacts and operates with its people and was therefore a revision and not an amendment. For a revision to be found, it must necessarily or inevitably appear from the f ace of the challenged provision that the measure will substantially alter the basic governmental framework set forth in our Constitution. 

I find that same-gender marriage may, on its face, appear to be a relatively simple enactment but it has accomplished such far reaching changes in the nature of our basic governmental plan by affecting and broadening an individual's interest in personal autonomy protected by the right of privacy, the liberty interest protected by the due process clause, and the independent substantive right to marry, as well as equal protection. A simple amendment that, "only marriage between a man and a woman is valid or recognized in California," is a revision because it amounts to wholesale evisceration and revision of several portions of the California Constitution that are not addressed in the initiative. 

Marriage is not so simple. The right to marry is not properly viewed as simply a benefit or privilege that a government may establish or abolish as it sees fit, but rather that the right constitutes a basis civil or human right of all people. Marriage is a privacy right older than the Bill of Rights. Courts have noted that: 

"We deal with a right of privacy older than the Bill of Rights-older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects...The policy favoring marriage is 'rooted in the necessity of providing an institutional basis for defining the fundamental relational rights and responsibilities of persons in organized society.'"  

"Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival." In the Marriage Cases, the California Supreme Court found the "recognition that the core substantive rights encompassed by the constitutional right to marry apply to same-sex as well as opposite-sex couples..."  (emphasis added) 

In fact, the court went on, probably further than necessary for the ruling by stating: 

"In light of the fundamental nature of the substantive rights embodied in the right to marry -- and their central importance to an individual's opportunity to live a happy, meaningful, and satisfying life as a full member of society -- the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation."               

Marriage is a fundamental core right, which now is defined to include the right of same-gender couples to marry.  Therefore, neither the state nor the initiative process can amend the definition of marriage such that it excludes same-gender couples. At best, the state or initiative process can merely amend the Constitution to create incentives to marry, adopting measures to protect the marital relationship or, alternatively, how a marriage can be terminated.  However, anything that goes beyond these measures and intercedes into the now traditional definition of marriage requires a revision of the state Constitution and the institution of marriage itself. The proposed initiative attempts to "change" the California Constitution that would result in removing the fundamental rights discussed by a voter initiative amendment. However, a single sentence voter initiative amendment cannot alter the Constitution's comprehensive framework. 

A 1962 amendment granted the Legislature the authority to propose either revisions or amendments. With regard to the limitation on amendments and revisions Article XVIII of the California Constitution allows for amendment of the Constitution by the Legislature, or initiative and revision of the Constitution by the Legislature, or a constitutional convention. There is no other method for revising or amending the Constitution. An amendment implies such an addition or change within the lines of the original instrument as will effect an improvement or to better carry out the purpose for which it was framed. 

The revision/amendment analysis has a dual aspect, requiring us to examine both the quantitative and qualitative effects of the measure on our constitutional scheme. Substantial changes in either respect could amount to a revision. An enactment which is as extensive in its provisions as to change directly the substantial entirety of the Constitution by the deletion or alteration of numerous existing provisions may well constitute a revision thereof.  

However, even a relatively simple enactment may accomplish such far-reaching changes in the nature of our basic governmental plan as to amount to a revision also. According to the Marriage Cases, although our state Constitution does not contain any explicit reference to a "right to marry," past California cases establish beyond question that the right to marry is a fundamental right whose protection is guaranteed to all persons by the California Constitution. In light of the fundamental nature of the substantive rights embodied in the right to marry - and their central importance to an individual's opportunity to live a happy, meaningful, and satisfying life as a full member of society - the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation.    

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Kevin Norte is a legal analyst, frequent guest Op-Ed contributor for Los Angeles's Metropolitian-New Enterprise, political blogger, and an attorney. Kevin, earlier in his career helped organize the attorneys at his place of employment into an (more...)
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