Senator Leno and his cohorts in the California State Legislature have some explaining to do. Here’s their first attempt. This letter was sent to a friend of mine (*name has been changed for privacy):
Hi California Voters*,
I hope this information helps clarify why Senator Leno is moving forward with his resolution SR7.
The California Legislature made history in 2005 by passing the first bill in the United States that would allow same-sex couples to obtain civil marriage licenses. The Legislature passed a nearly identical bill again in 2007. Both measures were vetoed by Governor Arnold Schwarzenegger.
In a May 2008 decision relying heavily on California’s legislative history relating to marriage for same-sex couples, the California Supreme Court declared it unconstitutional to deny same-sex couples the fundamental right to marriage and struck down California’s law limiting marriage to opposite-sex couples. Following the Court’s landmark decision approximately 18,000 same-sex couples wed in California. The historic “Summer of Love” following the Court’s ruling captured international attention and encouraged other states, such as Connecticut and New York, to follow suit in allowing or recognizing marriage for same-sex couples.
So California Voters, in response to our discussion, the CA Supreme Court already ruled that denying same sex couples the right to marry was unconstitutional. So opponents to this said, “Ok then, I guess we will just change the constitution.” That’s when the initiative process began… a whole different issue…
In February of 2008, out-of-state extremist organizations began circulating petitions to place a discriminatory marriage measure on California’s November ballot. What later qualified as Proposition 8 sought to permanently enshrine discrimination into the California Constitution. Civil rights groups quickly filed suit with the California Supreme Court in the case of Bennett v. Bowen, arguing that Prop 8 should not move forward for a popular vote without going to the Legislature first because it was a revision, or structural change to the Constitution, rather than an amendment. The Court declined to hear the case.
So the court never ruled on the issue of whether it was a revision or amendment because they argued that it was too early to bring the case to the court. The court doesn’t rule on hypothetical laws. If they did, and it didn’t pass, all of that work would be for nothing. So they said, “come back to us if it passes.”
And that’s exactly what we’re doing in the Resolution….
On November 4, 2008 Prop 8 passed by a narrow 52 percent margin. Civil rights organizations again filed suit with the California Supreme Court, asking that it overturn the initiative as an invalid revision. The Court accepted review of the case and could rule as early as June 2009. California Attorney General Jerry Brown recently filed his brief in the litigation on behalf of the state, arguing that he could not defend Prop 8 as it is in direct conflict with the guarantees of liberty and privacy contained in the Constitution.
So the court kept their promise, and they will rule on whether it is a revision or amendment in June.
PROPOSITION 8 WAS AN IMPROPER REVISION
Article XVIII of the California Constitution provides that while an amendment to the Constitution can be accomplished through the initiative process, a revision must originate in the Legislature and must be approved by a two-thirds vote before being submitted to the electorate.
In addition, Article III of the California Constitution establishes separation of powers between the legislative, executive, and judicial branches of government and a system of checks and balances. Under Article III, the courts have the ultimate authority to interpret and enforce the principle of equal protection, and the Legislature has a crucial deliberative role in any proposed revision of our Constitution.
Proposition 8 seeks to eliminate the fundamental right of marriage for a particular minority group on the basis of a suspect classification – sexual orientation – while permitting the majority to retain that fundamental right. The initiative would substantially alter our basic governmental plan by eliminating equal protection as a structural check on the exercise of majority power and by permitting majorities to force groups defined by suspect classifications to fight to protect their fundamental rights under the California Constitution at every election. As such, Proposition 8 is an improper revision, sidestepping the constitutionally required rigors of the legislative process and depriving the Legislature of its role to examine and debate such a significant change to the principles and structure that underlie the California Constitution.
WHAT THIS RESOLUTION WOULD DO
Senate Resolution 7 would specify that significant revisions to the Constitution mandate distinct procedures and require a two-thirds vote of each house of the Legislature before going to the voters. It would put the Senate on record that Proposition 8 did not follow the proper process and should be overturned as an invalid revision to the California Constitution. SR 7 would safeguard the integrity of our constitutionally required checks and balances and help to ensure that minority rights are not stripped away at the ballot box by a simple vote of the majority.
Our Resolution does not say how the Court should rule, it just says that it is the opinion of the legislature that their authority to vote by 2/3 of each house was denied. We agree that you can revise the constitution, you just have to do it in the proper way. The process that everyone else has had to follow. If voters feel so strongly about this, they shouldn’t have a problem getting their representative to support this.
I hope this information helps,
Somehow just seeing all that twisted rhetoric pinned down to one sheet of paper just makes me want to get out my red pen. Don’t you agree? Ok, so that is their argument, let’s poke some holes in it. Open Thread! Let the rebuttals begin!