The Volokh Conspiracy - California Legislature About To Violate the California Constitution?

I tentatively support legislative enactment of same-sex marriage -- but only when the legislature is constitutionally authorized to do this. And the California bill that would legalize same-sex marriage seems to me to be a pretty clear violation of the California Constitution.

California Family Code sec. 308.5, enacted by the voters as Prop. 22 in 2000, provides that

Only marriage between a man and a woman is valid or recognized in California.This is an initiative statute, not a constitutional amendment; it therefore may be challenged as violating the state constitution (a matter that's now before the state courts), and may be overturned through something less than a constitutional amendment. But that something must be a vote of the people, not just a vote of the legislature; California Constitution article II, section 10(c) says that
The Legislature . . . 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.
So while the legislature could put a new proposal on the ballot, it can't just overturn the old ballot measure on its own say-so (even if the Governor signs it).

As best I can tell, the legislature's argument is that Prop. 22 only banned California from recognizing out-of-state same-sex marriages; but nothing in the Proposition's text says anything about that -- the law applies to all marriages. Some materials in the ballot pamphlet stressed the risk that California courts would recognize out-of-state same-sex marriages, since that was the most pressing risk (from the perspective of foes of same-sex marriage) visible in 2000. But while ballot pamphlet materials may indeed be relevant when a court is interpreting an unclear statute, nothing in the materials says or in my view even suggests that the initiative is limited to out-of-state marriages.

Moreover, the initiative text is clear, and "ballot materials can help resolve ambiguities in an initiative measure . . ., but they cannot vary its plain import." People v. Wheeler, 4 Cal.4th 284, 294 (1992) (superseded by statute on an unrelated point). The legislature is trying to overturn the people's will without a vote of the people, a step that violates the California Constitution.

	[Eugene Volokh, September 7, 2005 at 7:40pm] Trackbacks California Legislature About To Violate the California Constitution? I tentatively support legislative enactment of same-sex marriage -- but only when the legislature is constitutionally authorized to do this. And the California bill that would legalize same-sex marriage seems to me to be a pretty clear violation of the California Constitution. California Family Code sec. 308.5, enacted by the voters as Prop. 22 in 2000, provides that Only marriage between a man and a woman is valid or recognized in California.This is an initiative statute, not a constitutional amendment; it therefore may be challenged as violating the state constitution (a matter that's now before the state courts), and may be overturned through something less than a constitutional amendment. But that something must be a vote of the people, not just a vote of the legislature; California Constitution article II, section 10(c) says that The Legislature . . . 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. So while the legislature could put a new proposal on the ballot, it can't just overturn the old ballot measure on its own say-so (even if the Governor signs it). As best I can tell, the legislature's argument is that Prop. 22 only banned California from recognizing out-of-state same-sex marriages; but nothing in the Proposition's text says anything about that -- the law applies to all marriages. Some materials in the ballot pamphlet stressed the risk that California courts would recognize out-of-state same-sex marriages, since that was the most pressing risk (from the perspective of foes of same-sex marriage) visible in 2000. But while ballot pamphlet materials may indeed be relevant when a court is interpreting an unclear statute, nothing in the materials says or in my view even suggests that the initiative is limited to out-of-state marriages. Moreover, the initiative text is clear, and "ballot materials can help resolve ambiguities in an initiative measure . . ., but they cannot vary its plain import." People v. Wheeler, 4 Cal.4th 284, 294 (1992) (superseded by statute on an unrelated point). The legislature is trying to overturn the people's will without a vote of the people, a step that violates the California Constitution.