Academic

Words Do Matter

By Tony Infanti

Supporters of Proposition 8, which would amend the California Constitution to ban same-sex marriage and overturn the California Supreme Court’s decision in In re Marriage Cases, have filed suit against Attorney General Jerry Brown. They object to Brown’s change in how their proposition will be described on the November ballot.

Initially, Brown had titled the ballot measure “Limit on Marriage,” but, in the wake of the California Supreme Court’s decision and the subsequent marriages of many same-sex couples in the state, he changed the title to “Eliminates right of same-sex couples to marry.” Supporters of the proposition object that the new title is “misleading and prejudicial.” They also contend that the use of a verb (”eliminates”) in the title is inappropriate because the titles of ballot initiatives usually contain only nouns.

Are they kidding? I understand the political posturing because the framing of a question can often influence the answer that is given. But to call the revised title “misleading” is disingenuous (at best). Proposition 8 would ban same-sex marriage and, yes, “eliminate” the extant right of same-sex couples to marry in California. How is it misleading (or for that matter, prejudicial) to actually tell the voters what the effect of their “yes” votes will be? And is it really neutral to keep the old title “Limit on Marriage” when the measure will not just limit marriage to different-sex couples, but also erase the marriages of the many same-sex couples who will have married between June and November? Clearly, supporters of Proposition 8 prefer the previous title because that title is itself partial and misleading in its description of the constitutional amendment. They are afraid that the voters will reject Proposition 8 if they are told the truth that Proposition 8 will have real effects on real people.

As the editorial board of the San Jose Mercury News correctly observes: “In the war over words, Attorney General Jerry Brown has nothing to apologize for. All he’s offered is blunt clarity.”

-Tony Infanti

Full post as published by Feminist Law Professors on August 04, 2008 (boomark / email).