Different River

”You can never step in the same river twice.” –Heraclitus

September 7, 2005

Ignoring the Voters and the Constitution

Filed under: — Different River @ 11:06 pm

If you’ve been paying attention to news today, you’ve no doubt heard that that yesterday the California state legislature voted to allow gay marriages in California. The universal theme of the reporting on this seems to be that this is the first time a state legislature passed such a law on its own initiative, rather than being told to do so by a court. The other issue mentioned is whether Gov. Schwarzenegger will sign the bill.

What no one seems to have noticed is that this law (A.B. 849) is a blatant violation of the California Constitution. The reason for this is that five years ago California voters passed Proposition 22, an “Initiative Statute” which added one sentence to state law, Section 308.5 of the California Family Code:

308.5. Only marriage between a man and a woman is valid or recognized in California.

Why does this make the legislature’s action unconstitutional? Because the state Constitution specifically prohibits the legislature from amending or repealing an initiative statute, without having the voters approve the change. Specifically, Article 2, Section 10(c) of the California Constitution states:

The Legislature may amend or repeal referendum statutes. It may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval.

Note that Proposition 22 was an “initiative statute” not a “referendum statute,” and it contained no language permitting “amendment or repeal without their approval.” (For those of you not from the western United States and thus may be unfamiliar with the distinction between the rights of initiative and referendum, see this explanation.)

What’s even more bizarre is that this law contains specific language claiming that it doesn’t mean to change Prop 22:

SEC. 3.
The Legislature finds and declares as follows:

(k) It is the intent of the Legislature in enacting this act to
end the pernicious practice of marriage discrimination in California.
This act is in no way intended to alter Section 308.5 of the Family
Code, which prohibits California from treating as valid or otherwise
recognizing marriages of same-sex couples solemnized outside of

SEC. 8.
The Legislature finds and declares that this act does not amend or modify Section 308.5 of the Family Code, as enacted by an initiative measure, to the extent that Section 308.5 addresses only marriages from other jurisdictions. The Legislature further finds that Sections 300 and 308.5 of the Family Code have been declared unconstitutional by a state coordination trial judge appointed by the Judicial Council, …

Here is a translation of that paragraph into plain English: “We want to end the ‘pernicious practice’ of requiring both a husband and a wife in each marriage in California, but we can’t do that since the voters said we can’t, andthis is, after all, a democracy. So we are going to do it anyway, by deliberately pretending that the voters didn’t mean what they said. That is, when they said ‘Only marriage between a man and a woman is valid or recognized in California,’ they meant to say ‘Only marriage between a man and a woman performed in another state is valid or recognized in California, but marriage between some other group or couple performed in California is perfectly OK. So when the voters called this the ‘California Defense of Marriage Act,’ they meant only to defend non-California marriages.”

This is, as they say, not only nonsense, but nonsense on stilts. To see how crazy this is, here’s an analogy. Suppose the U.S. Congress passed a law like this:

Section 1: Criticizing any Member of Congress, the President, or the Vice President, either in speaking or writing, shall henceforth be a felony punishable by one to ten years in a federal prison.

Section 2: It is the intent of the Congress in enacting this act to end the pernicious practice of poltical criticism in the United States.
This act is in no way intended to alter Amendment 1 of the Constitution of the United States, which prohibits Congress from making any law abridging the freedom of speech, or of the press when anyone speaks or writes about their favorite movies.

Section 3: Congress finds and declares that this act does not amend or modify Amendment 1 of the Constitution of the United States, to the extent that Amendment 1 addresses only freedom of speech and press as they related to movie reviews. Congress further finds that Amendment 1 has been declared unconstitutional by the Speaker of the House’s personal lawyer…

If you think any of this makes sense, you’re qualified to be a liberal judge!

And as we’re about to hear during the John Roberts confirmation hearings, if you think the Constitution and laws mean what they say — in fact, if you believe the words in those laws mean anything at all — then you’re a “right-wing extremist” and you’re “out of the mainstream.”

As are, I suppose, the 61.4% of California voters who voted for Proposition 22. If you find it odd that nearly two-thirds of the voters can be “out of the mainstream,” you must be one of those “math extremists” who think numbers mean things.


AP is reporting that Gov. Schwarzenegger plans to veto the bill “Out of respect for the will of the people,” and as I predicted above, this is being called “extreme right wing”:

Schwarzenegger said the legislation, given final approval Tuesday by lawmakers, would conflict with the intent of voters when they approved an initiative five years ago. Proposition 22 was placed on the ballot to prevent California from recognizing same-sex marriages performed in other states or countries.

“We cannot have a system where the people vote and the Legislature derails that vote,” the governor’s press secretary, Margita Thompson, said in a statement. “Out of respect for the will of the people, the governor will veto (the bill).”

“Clearly he’s pandering to an extreme right wing, which was not how he got elected,” said Geoff Kors, executive director of Equality California, one of the bill’s sponsors. “He got elected with record numbers of lesbian and gay voters who had not previously voted for a Republican, and he sold us out.”

How undemocratic, I guess, to “sell out” a small percentage of the voters to preserve vote of a mere 61.4% of the voters. Better to “sell out” the majority to pander to the 2% or so of voters who make up the “mainstream.” Yup, that’s democracy. Not all this extremist “majority vote wins” garbage. We need a system where the vote of the people can be derailed by the legislature if they know better! That’s true equality!

(Now where did I put my copy of 1984?)

One Response to “Ignoring the Voters and the Constitution”

  1. Gary Says:

    There is a passage where good is called evil and evil good. We are in such a time. There are also passages that tell what will follow this time.

    The California legislators? dumb to dumber. I have no other words for them.

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