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Same-sex marriage (SSM) & domestic partnerships in California

Attempts to stall & rewrite Prop. 8

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Attempts to stall the constitutional amendment/revision:

On 2008-JUN-20, three California voters and four organizations filed a lawsuit with the state Supreme Court. The latter were the National Center for Lesbian Rights, Lambda Legal, American Civil Liberties Union, and Equality California. The suit claims that the procedure for revising the California Constitution was not properly followed by ProtectMarriage.com in its proposal of Proposition 8.

The suit notes that there are two ways of modifying the constitution:

• Amendments are minor changes that only require 50% or more support by the voting public to pass.
• Revisions are major changes that would significantly change the constitution. They require approvals from both the voters and the legislature.

The difference is immense. The legislature, on two previous occasions, has passed marriage equality bills, and would probably turn down a revision to reverse marriage equality.

The lawsuit argued that if Proposition 8 -- the ProtectMarriage.com initiative -- is passed, it "... would change the state's Constitution so profoundly that it would amount to a revision."

Equality California notes that passage of the ballot initiative: "... would eviscerate the principle of equal citizenship for gay and lesbian people and strip the courts of their authority to enforce basic constitutional guarantees."

They are apparently referring to the Constitution's guarantees of equal protection under law. Prop. 8 would create two classes of citizens in California: a majority of loving, committed couples who are permitted to marry, and a minority of loving, committed couples who would not be permitted to marry because of their sexual orientation. ₁

Stephen V. Bomse of Heller Ehrman LLP, a lawyer involved in this lawsuit said:

"We filed this lawsuit because the sponsors of the initiative haven’t followed the very Constitution they’re trying to change. For good reason, there’s a strict process for making revisions to our Constitution, and it’s more involved than simply collecting petition signatures. That process is in place to safeguard our basic form of government, especially the most basic principle of equal protection of the laws. Therefore we are filing this suit today to ask the California Supreme Court to enforce those rules and to require the proponents to follow the correct procedure if they wish to make this far reaching change to our state Constitution." ₂

On 2008-JUL-16, the California Supreme Court denied the petition to remove Prop 8 from the November ballot.

Equality California, the National Center for Lesbian Rights, Lambda Legal, and the American Civil Liberties Union issued a statement:

"We’re disappointed, but this ruling does not affect the campaign against Prop 8 in any way. We have been focused on continuing with the election and moving forward, talking to voters and working in the precincts—asking Californians to Vote No on 8. Californians do not want their Constitution to single out people to be treated differently. We are confident they will vote NO in November to make sure everyone is treated equally under the law." ₃ 

Wording of Prop. 8 changed by the Attorney General:

The amendment is unchanged from Proposition 22 in the year 2000: Its intent was to amended: "... the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California."

In late 2008-JUL, the office of Attorney General Jerry Brown issued the final wording for the title and the wording of Prop. 8 that will appear on the November ballot:

• The title was changed from "Limit on Marriage Constitutional Amendment" to "Eliminates Right of Same-sex Couples to Marry."

• The summary now reads: "Changes California Constitution to eliminate right of same-sex couples to marry. Provides that only a marriage between a man and a woman is valid or recognized in California."

• It goes on to discuss "revenue loss, mainly sales taxes, totaling in the several tens of millions of dollars, to state and local governments." It also indicates that continuing the issuance and registration of same-sex marriages  would likely have little impact on the fiscal budgets of state and local governments.

Spokesperson Gareth Lacy of the Attorney General's office said that changes in ballot descriptions often occurr. In this case, it was necessary because of the recent "extremely important" ruling by the California Supreme Court that everyone has the right to marry.

Needless to say, there were conflicting responses to the new wording by social/religious conservatives and gay-positive groups:

• Steve Smith, campaign manager for No on Proposition 8 said:

  "What Proposition 8 would do is eliminate the right of same-sex couples to marry, which is exactly what the attorney general put in the title of the measure."

• Jennifer Kerns, spokeswoman for Protect Marriage, said the new language was "inherently argumentative" and a "complete about-face" from the title assigned during signature gathering. She criticized the Attorney General for not providing ballot title and summary that is "fair, accurate and not prejudicial." She continued:

  "We feel the ballot language is so inflammatory that it will unduly prejudice voters against the measure."

  On another occasion, she wrote:

  "Proposition 8 simply seeks to restore the definition of marriage back to its original meaning of the previous 158 years of California statehood. At the end of the day, it should be the people of California – not the Attorney General – who decides what their opinion of a ballot measure is." ₄

Kerns confirmed that proponents of Prop 8 "...will file a ballot challenge Superior Court in Sacramento" on JUL-29. ₅

Protect Marriage pointed out that an active verb like "eliminates" has never been used in the title of a ballot measure during the half century that ballot measures have been used. That may well be because this is the first ballot measure in the history of the state to identify a group of individuals -- same-sex couples in this case -- and then strip away from them fundamental human rights that they have been enjoying -- the right to marry in this case.

On 2008-AUG-08, the California Supreme Court dismissed the ballot challenge that sought to overturn the Attorney General's title change and text rewriting.

References used:

 The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. "Bench Pressing: Equality CA urges court to strike initiative," Family Research Council mailing, 2008-JUN-23.
2. "Brief Filed on Initiative Procedure," Equality California news release, 2008-JUN-20, at:  http://www.eqca.org/
3. "CA Supreme Court Rules on Bennett v. Bowen," Equality California, 2008-JUL-16, at: http://www.eqca.org/
4. "Lawsuit filed to challenge California ballot’s ‘inflammatory’ rewording of marriage amendment," Catholic News Agency, 2008-AUG-01, at: http://www.catholicnewsagency.com/
5. Aurelio Rojas, "Backers of same-sex marriage ban to challenge rewording of Proposition 8," Sacramento Bee, 2008-JUL-29, at: http://www.sacbee.com/

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Copyright © 2008 by Ontario Consultants on Religious Tolerance
Latest update and revision: 2008-NOV-05
Author: B.A. Robinson

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