Art Leonard: California Supreme Court Suit Seeks Invalidation of Anti-Marriage Initiative
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Monday, June 23, 2008

A coalition of LGBT rights groups and law firms filed suit in the California Supreme Court on June 20, seeking to have a proposed initiative to ban marriage for same-sex couples excluded from the general election ballot this November.  Bennett v. Bowen is the name of the case, with California Secretary of State Debra Bowen sued in her official capacity, and the individuals whose names appear as proponents on the initiative named as real parties in interest.

Pre-election litigation against ballot measures is by no means unprecedented, although courts generally prefer to avoid deciding controversial questions unless they have to do so, and if the initiative is not approved by the voters, the court would never have to rule on its validity. But in their memorandum of law supporting the motion to stay voting on this measure, the petitioners have made strong arguments along two lines.

First, they argue, because of the significant impact that passage of this initiative would have on fundamental rights and equality guarantees of the California Constitution, as identified by the Supreme Court in _In re Marriage Cases_, 43 Cal.4th 757 (2008), its historic ruling ordering that same-sex couples be allowed to marry, it is really a revision, not a simple amendment. Under California constitutional procedures, the Constitution may be amended by the popular initiative process, but may not be revised through that process. Revision may only be undertaken through a more deliberative process involving each house of the legislature approving a proposed revision by a 2/3 vote followed by submission to the people, or a state constitutional convention, again followed by submission to the people.

The key question here is: what is a revision, and how is that distinguished from a mere amendment? A revision is a change affecting the "underlying principles" of the Constitution, and could be a revision because it is sweeping and wide-ranging, covering many different subjects, or because qualitatively it alters the "nature of our basic governmental plan." In this case, the proposed initiative appears on its face narrow in focus, stating simply that only the union of a man and woman will be valid or recognized as a marriage in California, but in light of the recent Supreme Court holding, the petitioners argue, it is actually a rather dramatic and far-reaching measure. This is because the court s decision established two important points of constitutional law that would be altered by the initiative: that sexual orientation is a "suspect classification" under California constitutional law, and that the right to marry is a "fundamental right." By decreeing that marriages of same-sex partners would not be valid
or recognized in the state, the initiative would in effect make an express constitutional exception to the equality guaranteed to LGBT people under the Constitution, and would also deprive them of a fundamental right at the same time.

This is not to say that the state constitution could not be amended to ban marriages for same-sex couples, but rather that because of the significant effect this would have on the existing structure of California constitutional rights, as described by the Court in the Marriage Cases, such a ban constitutes a "revision" rather than a mere amendment, and can only be achieved through the more deliberative process specified for revisions.

The petitioners argue that this proposal is unprecedented in California jurisprudence, to allow a simple majority vote of the electorate revise the state s due process and equal protection guarantees to carve out for inferior treatment a specific class of people. While it may be true that some past initiatives have enacted rules that benefitted some people, perhaps at the expense of others, they argue that this proposed initiative, unlike those that have survived judicial review in the past, works a direct deprivation of a fundamental right on a class basis.

The alternative argument goes to the core requirements of popular democracy as practiced through the California initiative process. The law requires that when solicitors seek signatures from voters to get their measure on the ballot, they must show them wording that has been approved by the Secretary of State providing an accurate description of the proposed measure, including an appraisal of its fiscal impact. At the time this initiative was submitted to the Secretary of State, language was approved stating that the measure would have no fiscal impact because it would not change existing law. Literally speaking, that might be deemed a fair statement at the time, since the status quo was that same-sex couples could not marry. However, the Petitioners point out, at the time these petitions were being used to solicit signatures, the Supreme Court had already granted review in the Marriage Cases, thus vacating the court of appeal s adverse ruling and placing the status of the plaintiffs claims in that case back
in play. Thus, a truly honest evaluation of fiscal impact at the time the signatures were sought would say that the fiscal impact was unknown because it was not yet established whether the initiative would change existing law.

And, of course, in the event, with same-sex couples getting married in California from June 16 forward, the initiative, if passed, would change the state of the law, and would also, according to projections, have an adverse fiscal impact on the state, in light of the positive fiscal impact that has already begun to be generated by spending on marriage ceremonies and celebrations. The Petitioners point out that the ballot description was misleading when it was being circulated, and is now downright inaccurate.

They also point out that even though discretion and tough-question avoidance may lead courts to refrain from pre-election rulings on the revision vs. amendment question, this second point requires a pre-election determination. The court s precedents show that if a misleading description was circulated with a proposed measure, doubt would be cast on the signatures thus obtained, and so the measure should be held not to qualify for the ballot at all.  The presence on the ballot of a question that should not be there has adverse consequences, diverting resources from other matters and diluting voter attention.

Do either of these arguments stand a chance of getting the initiative knocked off the California ballot? Hard to say. I am not an expert in California constitutional law or initiative procedure. I did find the Petition quite compelling. I m certain that Alliance Defense Fund and Liberty Counsel and the others who were working so hard to try to prevent the Supreme Court s decision from going into effect will do their darndest now to submit persuasive arguments as to why "the people" should be allowed to vote to deprive their fellow citizens of a fundamental right along suspect classification lines (for that is what holding an election on this proposal would constitute). One hopes the court sees through that argument and decides that only the more deliberative process of the legislature or a constitutional convention should be the mechanism for this question to be addressed further by California.

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