Metropolitan News-Enterprise


Tuesday, July 29, 2008


Page 7



Problems With Proposition 8 Abound




The Attorney General and Legislative Analyst changed the wording of controversial initiative while the ruling was still pending in California Supreme Court about wording of initiative without informing the Supreme Court of the change. Attorney General Jerry Brown failed to indicate in his response filed on July 1 that the language would be changed. The revised initiative is dated July 3. (See Bowler v. Brown (2008) 2008 Cal. App. Unpub. LEXIS 552 [Third Appellate District ruling on procedurals issues relating to ballot initiative title.].)

The California anti-gay marriage initiative, the “Limit on Marriage, Constitutional Amendment” was changed to “Eliminates Right of Same-Sex Couples to Marry. Initiative Constitutional Amendment” two days after the Attorney General filed an opposition to challenge to the initiative. Brown’s office filed an opposition to the challenge and explicitly stated, “The Title and Summary are Presumed Accurate and May Be Held Insufficient Only in a Clear Case.” The Supreme Court denied the challenge without reaching the merits of the petitioners’ claims on July 16.

The wording was apparently changed to reflect the current state of the law. In May 2008, the Supreme Court invalidated Family Code §§ 300 and 308.5 on the ground that those statutes (one an initiative statute) violated same gender couples’ equal protection rights. The petition that was circulated never contained any disclosure about the elimination of existing rights because the initiative was circulated while those rights did not exist. Simply put, voters never signed a petition to eliminate existing rights.

It now reads, “Changes California Constitution to eliminate the right of same sex couples to marry. Provides that only marriage between a man and a woman is valid or recognized in California.”

Questions now arise whether the initiative is retroactive or prospective in effect. Assuming Prop. 8 is approved by the voters and survives the prior challenge that was denied without reaching the merits of whether it is a revision or an amendment, would it actually dissolve marriages entered before its effective date of November 5, 2008?

Any attempts to do so could possibly invalidate the entire amendment. A classic textbook WITKIN analysis might be that the “entire amendment” is invalid. It could be argued that the entire law would be invalid because it conflicts with certain constitutional protections. At a minimum, a challenge could be brought that the entire initiative is invalid. It contains no severance clause. As to marriages entered before the effective date, it could be argued that (1) it is an ex post facto law, (2) it impairs the obligations of the contract between spouses, and (3) it deprives spouses of a vested right or substantially impairs that right (such as forcing us to be in some type of second-tiered inferior arrangement), thereby denying same gender couples due process because it would involve a taking of community property rights and assets without due process of law.

Additionally besides that non-retroactivity ambiguity issue, there is an equal protection claim for anyone who wants to get married after Nov. 4 assuming the pre-election marriages cannot be touched. The equal protection claim could be made on the grounds that the amendment treats same gender couples who desire to get married different than couples who entered a marriage before the effective date.

Another problem with the proposed ballot statement is that the proponents plan to tell voters in the state ballot pamphlet that the constitutional amendment would protect children as young as kindergarten age from being taught in school about the virtues of gay and lesbian matrimony.

The argument reads in part, “If the gay marriage ruling is not overturned, teachers will be required to teach young children there is no difference between gay marriage and traditional marriage.”

Unfortunately, it is a lie and since the California Supreme Court is only scheduled for a conference on July 30 and is dark the rest of the time prior to the ballot going to the printer, there is little hope that this lie can be stopped from being disseminated to the public.

The “Eliminates Right of Same-Sex Couples to Marry. Initiative Constitutional Amendment,” if it is approved by the voters and subsequently survives the expected numerous court challenges, would reverse a May 15 ruling by the state Supreme Court that struck down California’s ban on same-sex marriage. The initiative would amend the state constitution to declare that only marriage between a man and a woman is valid or recognized in California. The title, however, is ambiguous because it implies that it would only apply prospectively while the substance seems to imply that it would apply retroactively.

However, neither the ruling nor the ballot measure mentions education. The “Yes on 8” campaign makes this absurd leap in logic and defies any rational explanation of the law. They claim the court decision would make instruction on same-sex marriage mandatory under a state law that requires public schools to offer comprehensive health education programs from kindergarten through high school.

The law only addresses “the legal and financial aspects and responsibilities of marriage.”

In their argument, they state, “We should not accept a court decision that results in public schools teaching our kids that gay marriage is okay [sic]. That is an issue for parents to discuss with their children according to their own values and beliefs. It shouldn’t be forced on us against our will.”

Unfortunately their position is a lie that will go to the voters. State law allows parents to remove children from any health class that violates the parents’ religious beliefs.

The education law does not specify that health education programs at every grade level must include marriage, or that same-sex marriage must be discussed at all.

The law requires that students be taught at some point before high school graduation about the legal and financial aspects of marriage. It does not refer to gender. The only explanation that would be required is that legally, unless the federal Defense of Marriage Act is repealed or overturned, there is no federal legal recognition of same gender marriages. However, under an equal protection analysis and because Family Code § 297.5 basically requires that domestic partners have the same rights as married spouses, the legal and financial aspects and responsibilities of domestic partnerships appear to be logically mandated by the Education Code sometime prior to graduation.

The ballot pamphlet also includes an illogical and internally inconsistent cost assessment of the measure by the Legislature’s nonpartisan fiscal analyst, Elizabeth Hill. Hill said Prop. 8 could cost state and local governments several tens of millions of dollars in sales tax revenue from same-sex weddings over the next few years but would have little financial effect on governments in the long run. How it would have no effect in the long run is perplexing because every year that gay and lesbian marriages are not performed is another year without tax revenues from that source. Whether it is 2009 or 2019, the impact, after 2008 should be the same.

It is a shame that the voters of this state have to put up with this sham of an initiative which, if passed, would probably be stricken on various Constitutional grounds.

(The writer is an 18-year research attorney for the Los Angeles Superior Court.)

Copyright 2008, Metropolitan News Company