Can a Ballot Measure Against Same Sex Marriage be Allowed?

[dickthegrouch]

I just finished reading the entire decision and one thing struck me very early on:

The Chief Justice may have made any ballot measure attempting to reverse the decision impermissible !!!!

On Page 6:

As discussed below, upon review of the numerous California decisions that have examined the underlying bases and significance of the constitutional right to marry (and that illuminate why this right has been recognized as one of the basic, inalienable civil rights guaranteed to an individual by the California Constitution), we conclude that, under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process.

(bolding mine)

I am not a lawyer, however, I think we could fight the ballot initiative on that ground as well as the whole issue not being a single issue which is required of ballot measures.

As the decision makes very clear there are many areas of law affected by the marriage statutes which could be put into constitutional conflict with each other.
Let's fight to keep the anti-marriage measure off the ballot with everything we've got.

[dubeskin]

1. No matter what, I'm pretty sure that the initiative

Would fail anyway. If passed, there will be pressure from Democrats, the Governor, and the ACLU, not to mention the rest of American liberals, to repeal this measure. All eyes are on California to see if it leads the way in equality for homosexuals and marital equality.

[Prophet 451]

2. Legally or morally?

Morally, absolutely not.

Legally, I'm afraid that a ballot to revise the state constitution would (if it passed) overrule the court's decision. The portions you highlighted refer to the state legislature or to the Proposals made to the populace which would create normal statutes, not to the process of revising the state constitution. The court's judicial duty is to rule on the constitutionality of legislation, not to evaluate the constitution itself and, if the constitution was revised with such a measure, they lack legal jurisdiction to challenge it. Only federal law or, in theory, the SCOTUS, has the jurisdiction to overrule the state constitution.

Incidently, I'm pretty sure that the sections highlighted fall obiter dicta anyway since that wasn't the question teh court was asked to rule on.

[AndyTiedye]

3. The Initiative is a Constitutional Amendment

[cloudythescribbler]

4. Exactly -- there is in CA a STATUTORY initiative process and a CONSTITUTIONAL one ...

kinda confusing, especially as a Constitutional Amendment only requires the same majority vote as a statutory one. I am not sure that Constitutional Amendments can be considered in elections other than November, but statutory ones are all the time.

[LeftCoast]

5. Yes, these guys screwed up last time and used the Statutory process rather than

the Constitutional process. That allowed the court case to take place...otherwise it would have trumped the court.

[TechBear_Seattle]

6. The problem is that no initiative can be limited by prior judicial opinion

At least, that is how it works in Washington State. An initiative, no matter how unconstitutional, cannot be held up on the grounds of illegality. The Secretary of State may issue an advisory to the initiative sponsors, informing them of likely problems and asking that the measure be withdrawn, but that is advisory and has no legal standing whatsoever. And the legislature and courts are not allowed to weigh in directly at all. Any legal ruling must be made after the initiative has been passed. I believe California is very similar.

And as others have pointed out, this is a constitutional amendment and not a normal initiative (Washington requires amendments to originate in the legislature, which seems a reasonable brake on bigoted measures like this.) If it goes into effect, the state Supreme Court ruling will be irrelevant. As a result, I expect the courts will be exceedingly reluctant to interfere, assuming they have the authority to interfere in the first place.

[dickthegrouch]

7. Thanks for the clarifications n/t