Legal Commentary

Groups Attempt to Keep Discrimination Out of CA Constitution

By TChris

Four advocacy groups and three voters filed a petition with California's supreme court yesterday asking the court to remove from the November ballot a citizen's initiative that would amend the state constitution to prohibit same-sex marriage. The petition cites two grounds.

First, the initiative was sold as a "preserving the status quo" measure. Voters who signed petitions in support of the initiative were told that man-woman marriage was already the law, and the initiative merely preserved existing legislation. That's no longer the case after the California Supreme Court recognized that people of the same sex have an equal right to marry. In other words, the Marriage Protection Act should properly be titled the Marriage Discrimination Act, and that isn't necessarily what its supporters signed up for.

On the other hand, most folks who signed the petition probably did intend to discriminate against gay marriage. The second and more persuasive argument is that the initiative actually seeks to revise the state constitution, not to amend it. [more ...]

"If enacted, it would alter the underlying principles on which the California Constitution is based and make far-reaching changes in the nature of our basic government plan, by severely compromising the core constitutional principle of equal citizenship (and) ... by destroying the courts' quintessential power and role of protecting minorities," it states.

Unlike a constitutional amendment that can be approved by voters, a constitutional revision requires convening a Constitutional convention or the appointment of a commission to recommend changes to the Legislature and voters, according to the petition submitted by same-sex marriage supporters.

"For good reason, there's a strict process for making revisions to our Constitution, and it's more involved than simply collecting petition signatures," said attorney Stephen Bomse in a statement posted on the Web site of the National Center for Lesbian Rights, another petitioner in the case.

"That process is in place to safeguard our basic form of government, especially the most basic principle of equal protection of the laws."

Good argument. The court that recognized the equal right to marry might well be persuaded by it.

Full post as published by TalkLeft on June 21, 2008 (boomark / email).