Thursday, July 17, 2008
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S.C. Rejects Bid to Remove Marriage Initiative From Ballot
By KENNETH OFGANG, Staff Writer
The California Supreme Court yesterday rejected a bid by opponents of Proposition 8 to remove the anti-same-sex marriage initiative from the November general election ballot.
In a brief order, the justices, without dissent, denied a petition for extraordinary relief and declined to stay the vote in order to consider further arguments.
Proposition 8 would amend the state Constitution to provide that marriage may only be contracted between a man and a woman, effectively overturning the high court’s May 15 4-3 ruling in In re Marriage Cases (2008) 43 Cal.4th 757 that same-sex couples have a right to marry under the state’s equal protection guarantee.
Revision v. Amendment
Proposition 8 opponents argued, based upon the high court’s reference to marriage as “one of the fundamental constitutional rights embodied in the California Constitution,” that depriving same-sex couples of that right would constitute a constitutional revision, not an amendment, and was thus beyond the citizens’ power of initiative.
They also contended that the initiative petitions were misleading because they asserted that same-sex marriage was presently illegal, based on statutes including the 2000 initiative, Proposition 22, which passed with 61 percent approval.
That was true, of course, when the petitions were being circulated and In re Marriage Cases had not yet been decided, although California officials began issuing licenses to, and recognizing the marriages of, same-sex couples once the ruling became final last month.
Yesterday’s order did not address those arguments, but allows the election to go forward. Proposition 8 opponents have previously acknowledged that the petition was a long-shot effort because the court normally waits until after an election to hear the merits of ballot-measure challenges—if the measure wins at the ballot box.
Future Litigation
Kevin Norte, a Los Angeles Superior Court research attorney who has authored, in his private capacity, a pair of MetNews columns on the issues, said that while yesterday’s action does not foreclose future litigation if Proposition 8 passes, it still contains a downside.
“The court today created a cottage industry I affectionately have named ‘The Gay Marriage Industrial Complex,’” he commented.
Norte explained that even if Proposition 8 fails—after a campaign in which the two sides are expected to spend about $15 million each—thereby mooting legal challenges, its supporters will continue to bring initiatives to ban same-sex marriage “forever.”
He cited “the history of...repetitive initiatives such as the parental consent to underage abortions” measure, which will be on the ballot again in November after having been twice rejected in recent elections.
Supporters of the initiative were predictably elated.
“Today’s Supreme Court decision is a huge victory in the fight to protect marriage,” proponent Ron Prentice said in a statement. “The Court’s dismissal sends a strong message that Proposition 8 continues to have the law on its side. Time and time again, the opponents have attempted to circumvent the democratic process, but the fact remains that the people of California have a right to vote on this issue.”
Randy Thomasson, president of the Campaign for California Families, said the order was “not unexpected in light of the homosexual activists’ undemocratic, intolerant, and extraordinary attack upon the voters’ right to vote.” Thomasson, whose request to intervene in the litigation in order to oppose removing the measure from the ballot was denied as moot, said it was fortunate that “activist judges are more used to inventing new ‘laws’ out of thin air than striking voter-qualified initiatives from the ballot.”
Copyright 2008, Metropolitan News Company