State Supreme Court Rules On Gay "Marriage"
Posted by: Jubal | 05/15/2008 10:53 AM
The California Supreme Court has decided, in its infinite wisdom, to reverse the state Court of Appeals and ruled that:
And I'm sure this will be welcome news to members of the Fundamentalist Church of Latter Day Saints. After all, if a man can marry a man or a woman can marry a woman, one can't very well deny someone the right to marry numerous spouses.
One can only hope this will be appealed and ultimately overturned.
The issue can also be resolved in favor of preserving the institution of marriage by amending the state Constitution.
In the meantime, those who believe in the separation of powers and oppose judicial policymaking and judges' usurping powers they don't possess can derive some intellectual nourishment from the dissent authored by Judge Marvin Baxter (with Justice Ming Chin concurring).
Justice Carole Corrigan authored her own dissent:
You can bet gay couples will start showing up at the county courthouse to get married. Will Tom Daly be there performing them in full view of the media -- and 4th District voters?
...the language of section 300 limiting the designation of marriage to a union "between a man and a woman" is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples. In addition, because the limitation of marriage to opposite-sex couples imposed by section 308.5 can have no constitutionally permissible effect in light of the constitutional conclusions set forth in this opinion, that provision cannot stand.Well, who needs the Legislature and the initiative process when we have Chief Swami Ronald George and his merry band to wave away the entire deposit of Western civilization as regards marriage and decide for the rest of us what the civil definition of marriage shall be?
Plaintiffs are entitled to the issuance of a writ of mandate directing the appropriate state officials to take all actions necessary to effectuate our ruling in this case so as to ensure that county clerks and other local officials throughout the state, in performing their duty to enforce the marriage statutes in their jurisdictions, apply those provisions in a manner consistent with the decision of this court.
And I'm sure this will be welcome news to members of the Fundamentalist Church of Latter Day Saints. After all, if a man can marry a man or a woman can marry a woman, one can't very well deny someone the right to marry numerous spouses.
One can only hope this will be appealed and ultimately overturned.
The issue can also be resolved in favor of preserving the institution of marriage by amending the state Constitution.
In the meantime, those who believe in the separation of powers and oppose judicial policymaking and judges' usurping powers they don't possess can derive some intellectual nourishment from the dissent authored by Judge Marvin Baxter (with Justice Ming Chin concurring).
Justice Carole Corrigan authored her own dissent:
In my view, Californians should allow our gay and lesbian neighbors to call their unions marriages. But I, and this court, must acknowledge that a majority of Californians hold a different view, and have explicitly said so by their vote. This court can overrule a vote of the people only if the Constitution compels us to do so. Here, the Constitution does not. Therefore, I must dissent.UPDATE: How will this impact the political aspirations of OC Clerk-Recorder Tom Daly, who is generally viewed as the likely successor to Sup. Chris Norby in the 4th District? I'll be if you polled 4th District residents on the court's decision, they would take a decisively negative view of it.
You can bet gay couples will start showing up at the county courthouse to get married. Will Tom Daly be there performing them in full view of the media -- and 4th District voters?
CATEGORY:
California Stuff





Good Bless the Supremes. Now everyone can go on with their lives and leave gay and lesbian citizens alone to enjoy their lives. Thank you Chief Justice George!
It's unfortunate that "fear" is driving this state and not God!
Next judges can rule that marriage can be between animals and human.
Remove all family destroying judges from the office.
The decision doesn't destroy families; it gives all families the benefits of equal protection as provided by our federal and state constitutions. I'm sure God is smiling down on California today.
Really? So now God is in favor of gay "marriage"?
Did He file an amicus brief?
Forget the absurdity of the decision in regard to the initiative process, Jubal brings up an excellent point about heretical Mormons and others who practice polygamy, and it's chance for legality after this decision. Chuck Devore has also mentioned this in the past, and it is never bought up by the media. It's interesting to wonder, if all those in joyous celebration over this decision, would act the same if this involved a man and a woman, and a woman, and another woman.
God is in favor of all expressions of love, caring, and committment...at least that's what my Bible says.
Family = committment between Adam(man) and Eve(woman) according to my Bilble!
Marshall,
I can assure you that all of us celebrating at the Cabana, as strict conservatives, could care less what goes on in other peoples' homes. As strict observors of the 10 Commandments, we do not covet another man's wife (or wives, as the case may be) nor any of his possessions.
CR-
Please explain to me, as the strict conservative you claim to be, how it helps the conservative cause for the word "marriage" to be hijacked for no apparently necessary reason. Gays and lesbians have already been given every right and benefit that a married couple has, through the institution of a civil union. What is the benefit of over-turning a vote of the people for an issue that is, in the situation of California, one of strictly semantics.
I'm dying to hear to hear your reasoning or the reasoning of any Log Cabin Republican. Jubal, maybe you can ask the Log Cabin Republicans for an official statement? That would be interesting...
Log Cabin Republicans Applaud California Supreme Court’s
Decision on Marriage Equality
Republican Gov. Arnold Schwarzenegger Says He Will Uphold This Ruling
( Washington , DC ) – Log Cabin Republicans applaud today’s historic ruling by the Supreme Court of California. In a 4-3 decision, the Court ruled that loving, committed gay and lesbian couples in California cannot be denied a civil marriage license. Republican governors appointed six of the seven justices on the high court.
“We commend the Court for carefully reviewing this case and reaffirming the principles of liberty and justice for all,” said Log Cabin Republicans President Patrick Sammon . “This ruling is a conservative one. The justices have ensured that the law treats all Californians fairly and equally,” said Sammon. “This decision is a good one for all families—gay and non-gay. Two people in a loving and committed relationship deserve the support and dignity that come with marriage.”
Immediately after the Court issued its ruling, Governor Arnold Schwarzenegger (R-CA) issued the following statement: “I respect the Court’s decision and as Governor, I will uphold its ruling. Also, as I have said in the past, I will not support an amendment to the constitution that would overturn this state Supreme Court ruling.”
In April 2008, Gov. Schwarzenegger publicly opposed any effort to pass a state constitutional amendment banning marriage for same-sex couples. He called such an effort a “total waste of time” and told a national gathering of Log Cabin Republicans “I will always be there to fight against that.”
“The California legislature has voted in favor of the freedom to marry, the State Supreme Court has ruled in favor of the freedom to marry and in November, the people likely will have the opportunity to support the freedom to marry by voting against a proposed constitutional ban on marriage,” said Sammon.
Opponents of marriage equality are pushing a signature gathering effort to put an anti-gay constitutional amendment on the November ballot. The California Secretary of State is reviewing the signatures. If the state certifies enough signatures, this initiative will go on the November ballot.
“The debate does not end with this decision,” said Sammon. “Discussions about the freedom to marry will continue with our families, co-workers and neighbors.
“Marriage is good for all Americans—gay and straight. It promotes values that strengthen society and the family,” said Sammon. “Today’s ruling shows once again that states are capable of making these decisions on their own, without unnecessary intervention from the federal government. Marriage has always been, and should continue to be, a state issue. This is the essence of federalism.
God is in favor of all expressions of love, caring, and committment...at least that's what my Bible says.
It's been my experience that whenever you press those whose try to pass such childish, relativistic, cumbaya expressions as biblical for some evidence to support their claim, they come up empty.
I can assure you that all of us celebrating at the Cabana, as strict conservatives, could care less what goes on in other peoples' homes.
But you do care, CR. You're ecstatic that 4 justices have set aside the expressed will of California voters and on their own have re-defined marriage. That impacts what goes on in other peoples homes -- so to say you don't care about it is disingenuous.
The Court ruled that loving, committed gay and lesbian couples in California cannot be denied a civil marriage license.
I must have missed the part of Chief Swami George's ruling applying it only to "loving, committed" gay and lesbians couples.
But the Log Cabineers want what they want, logic, reason, tradition and the will of the voters be damned.
I really don't think this decision is going to have any impact on what goes on in other peoples' homes - unless you are suggesting that this decision is going to suddenly allow individuals in unhappy marriages to find happiness in same-sex marriages?
And really, ecstatic, overstates our happiness.
CR-
I'm still waiting on a response from you or the Log Cabin Republicans as to what the conservative cause has GAINED by having the traditional meaning of the word "marriage" hijacked, and the will of the voters overturned, over an issue of semantics.
It would serve the Log Cabin Republicans well to send out a statement saying that "although we agree with the basic principle of equality, we can not support the court's decision to discount the opinion of million of voters, who overwhelmingly voted for Proposition 22 in 2000"...etc.
I
just
don't
get it.
Dear D'Anconia,
I disagree with the entire premise of your question. What you consider to be the conservative cause differs from what I consider to be the conservative cause. This does not imply that neither one is right or wrong, just different. You say the "traditional" meaning of marriage...by what "tradition"? And why should anyone else be bound by your definition any more than by mine? By my lights the conservative cause is served by the Court's reinforcement that all citizens are equal before the law with regards to marriage, it's benfits and responsibilities, and no majority of citizens can abridge those rights. That has been the "tradition" of jurisprudence throughout our history.
"Gays and lesbians have already been given every right and benefit that a married couple has, through the institution of a civil union."
That's not correct D. They can't file joint tax returns; adopting each others children is a nightmare at best, and the list goes on and one. That's an easy claim to fact check. And please explain to me how two men marrying or two women marrying is going to harm your marriage? Isn't divorce a greater threat to traditional marriage than gays marrying?
Today is a great day for personal freedom, for equal rights, and for liberty for everyone. You guys talk about freedom and liberty as though they are exclusive to Republicans only. Freedom and liberty for you but not for them?
We owe a hat tip to the recently department Mildred Loving, the wife in the landmark 1967 case of Loving vs Virginia that overturned bans on interracial marriage that we supported by the vast majority of the US population. Last year, on the 40th anniversary of the case, she said "yoiu marry a person, you don't marry the state" and came out in support of being allowed to marry the person you love regardless of race, creed, color, or sexual orientation. Without the Loving case, I will remind Matt that he would nothave been able to marry the lovely Mrs. Jubal; whites and browns weren't alllowed due to the traditions of marriage in Western Civilization that Matt points out.
CR-
"You say the "traditional" meaning of marriage...by what "tradition"? And why should anyone else be bound by your definition any more than by mine?"
It's not MY definition of marriage, it's the state's definition of marriage. As a matter of fact the federal government also defines marriage as being the civil union between a man and a woman.
There's an easy way for any state to come up with their own definition of marriage: let the voters decide. Your premise that "the conservative cause is served by the Court's reinforcement that all citizens are equal before the law with regards to marriage" would be debateable if it weren't for the basic fact that the courts overturned the will of the voters, something no conservative in California should be in support of at this time.
Dan-
"Isn't divorce a greater threat to traditional marriage than gays marrying?"
No. I think people that marry and divorce repeatedly suffer the personal consequences of such actions, but it does not in a broad basis undermine the traditional institution of marriage, like changing its definition does.
Ummm... the case can't be appealed. It's based on California law under the California constitution. There's no one to appeal it to. There were no US constitutional issues involved so SCOTUS has no jurisdiction.
(IANAL, but I did pay attention in high school Civics class.)
From the LA Times online Poll:
Did the California Supreme Court make the correct decision today?
81.7 %
Yes
18.3 %
No
14053 total responses
CR-
That's your response to my argument, quoting an LA Times poll?
I believe the voters let their will be known by voting for Prop 22 in the first place. What makes you believe the voters have changed their mind in the last 8 years?
What book and verse did God celebrate same sex unions as expressions of love, Cabana?
He refers to it as an abomination, He refers to it as prideful (the highest sin for which Sodom and Gomorrah were obliterated), He refers to it as against His will, and Jesus talks often of marriage and the roles of the sexes in the church specifically in terms of marriage between a man and a woman, so unless you found some expression of the Holy Spirit in the Bible, I believe that God and the Trinity are more than clear on the issue.
Your gnostic, secreted knowledge is telling in that like the rainbow -- a symbol of God's love for humanity that was coopted by your movement -- it disappears in direct sunlight.
The governor put hs hand on the Bible and swore to uphold the Constitution of California. Not the other way around. No one is arguing religious marriage here; chuches decide who can get married in their respective churches and faiths. We are talking about equal rights and protection under the Constitution of the State. Denying marriage to gays and lesbians is a denial of the same rights that straights have.
The Bible says "Love They Neighbor." It doesn't say "Unless he's gay"
oh puleeze! In 2002 it was "the will of the people" that Gray Davis be re-elected Governor; a year later "the will of the people" re-called him. The will of the people is as emphermal an expression of enduring standards as a sand castle build on the beach at low tide.
Truely, God's will is at work: a day ago there was no same-sex marriage in California, today there is. Rejoyce and be happy
All deputy clerks can perform the ceremony, so Daly can pass off his duties to others in the office.
Without the Loving case, I will remind Matt that he would not have been able to marry the lovely Mrs. Jubal; whites and browns weren't alllowed due to the traditions of marriage in Western Civilization that Matt points out.
That's not true. California anti-miscegenation laws had been struck down 20 years before.
Besides, the whole analogy to bans on interracial marriage is a red herring. Racial prejudice were at the heart of those laws. Supporters and opponents of those laws didn't disagree on the nature of marriage -- the union of a man and a woman -- but on what color woman should be able to marry what color man.
The court's ruling is a judicial diktat fiat seeking to re-define what marriage is.
Benjamin Franklin once said man has a natural inclination toward kingly government. Judging by the rapturous response to his ruling from some quarters, perhaps he was right.
Even if one supports such a re-definition, this is still a bad decision (see Justice Corrigan's dissent) -- just as one can be pro-choice and opposed to Roe v. Wade.
Dan, the Bible says "love thy neighbor as you love yourself...
NOT "marry your neighbor!!!
God created Man and Woman for purpose of establishing FAMILY
Perez vs. Sharp, a Mexican woman and a black man. Until that decision, traditional marriage was you married within your race. So roll the clock back 60 years Matt; you would have have been allowed to marry. And the argument is not a red herring; its evidence that marriage definitions have and do change.
Consider this article on marriage from the NY Times; loaded with historical perspective that conflicts with today's conservative viewpoint of traditional marriage.
November 26, 2007
OP-ED CONTRIBUTOR
Taking Marriage Private
By STEPHANIE COONTZ
Olympia, Wash.
WHY do people — gay or straight — need the state’s permission to marry? For most of Western history, they didn’t, because marriage was a private contract between two families. The parents’ agreement to the match, not the approval of church or state, was what confirmed its validity.
For 16 centuries, Christianity also defined the validity of a marriage on the basis of a couple’s wishes. If two people claimed they had exchanged marital vows — even out alone by the haystack — the Catholic Church accepted that they were validly married.
In 1215, the church decreed that a “licit” marriage must take place in church. But people who married illictly had the same rights and obligations as a couple married in church: their children were legitimate; the wife had the same inheritance rights; the couple was subject to the same prohibitions against divorce.
Not until the 16th century did European states begin to require that marriages be performed under legal auspices. In part, this was an attempt to prevent unions between young adults whose parents opposed their match.
The American colonies officially required marriages to be registered, but until the mid-19th century, state supreme courts routinely ruled that public cohabitation was sufficient evidence of a valid marriage. By the later part of that century, however, the United States began to nullify common-law marriages and exert more control over who was allowed to marry.
By the 1920s, 38 states prohibited whites from marrying blacks, “mulattos,” Japanese, Chinese, Indians, “Mongolians,” “Malays” or Filipinos. Twelve states would not issue a marriage license if one partner was a drunk, an addict or a “mental defect.” Eighteen states set barriers to remarriage after divorce.
In the mid-20th century, governments began to get out of the business of deciding which couples were “fit” to marry. Courts invalidated laws against interracial marriage, struck down other barriers and even extended marriage rights to prisoners.
But governments began relying on marriage licenses for a new purpose: as a way of distributing resources to dependents. The Social Security Act provided survivors’ benefits with proof of marriage. Employers used marital status to determine whether they would provide health insurance or pension benefits to employees’ dependents. Courts and hospitals required a marriage license before granting couples the privilege of inheriting from each other or receiving medical information.
In the 1950s, using the marriage license as a shorthand way to distribute benefits and legal privileges made some sense because almost all adults were married. Cohabitation and single parenthood by choice were very rare.
Today, however, possession of a marriage license tells us little about people’s interpersonal responsibilities. Half of all Americans aged 25 to 29 are unmarried, and many of them already have incurred obligations as partners, parents or both. Almost 40 percent of America’s children are born to unmarried parents.
Meanwhile, many legally married people are in remarriages where their obligations are spread among several households.
Using the existence of a marriage license to determine when the state should protect interpersonal relationships is increasingly impractical. Society has already recognized this when it comes to children, who can no longer be denied inheritance rights, parental support or legal standing because their parents are not married.
As Nancy Polikoff, an American University law professor, argues, the marriage license no longer draws reasonable dividing lines regarding which adult obligations and rights merit state protection. A woman married to a man for just nine months gets Social Security survivor’s benefits when he dies. But a woman living for 19 years with a man to whom she isn’t married is left without government support, even if her presence helped him hold down a full-time job and pay Social Security taxes. A newly married wife or husband can take leave from work to care for a spouse, or sue for a partner’s wrongful death. But unmarried couples typically cannot, no matter how long they have pooled their resources and how faithfully they have kept their commitments.
Possession of a marriage license is no longer the chief determinant of which obligations a couple must keep, either to their children or to each other. But it still determines which obligations a couple can keep — who gets hospital visitation rights, family leave, health care and survivor’s benefits. This may serve the purpose of some moralists. But it doesn’t serve the public interest of helping individuals meet their care-giving commitments.
Perhaps it’s time to revert to a much older marital tradition. Let churches decide which marriages they deem “licit.” But let couples — gay or straight — decide if they want the legal protections and obligations of a committed relationship.
####
Stephanie Coontz, a professor of history at Evergreen State College, is the author of “Marriage, a History: How Love Conquered Marriage.”
It's incredible that we have to defend our traditional family structure ................from our own government.
Then, we will need to defend "prom nights" in high schools
next on the endanger list is ................our little children's text books from the public schools
Some one falsely sold us the idea of "seperation of God from public places" and we are now paying for it....... dearly!
And the argument is not a red herring; its evidence that marriage
definitions have and do change.
I know I'm not going to change your mind, Dan. My response was more for the benefit of readers.
Bans on interracial marriage were wrong. But they also didn't touch on the nature of marriage -- what it is -- just on what color people should marry what color people.
Republicans complain about the nanny-state government, but when the government decides not to restrict personal liberties, the government is now full of "activist" judges.
Barry Goldwater is turning in his grave at what his party has become.
"...Assemblymen Chuck DeVore and Van Tran and state Sen. Tom Harman say the Supreme Court ruling goes against the will of the people, who approved Proposition 22 in a landslide vote.
“Proposition 22 consists of the clearest 14 words in our state law. There is no ambiguity here; the intent of California voters is clear and overwhelming,” Tran said. “I will fight this kind of judicial activism vigorously and continue to fight for marriage as only that between a man and a woman.”
DeVore said he has read the entire ruling and thinks the way the judges justified their opinion — by citing the rights to privacy and equal protection under the law — will strip the state of its power to ban “polygamous marriage or incestuous marriage since, using the court’s own arguments, these alternative arrangements do no harm to traditionally married couples.”
http://www.dailypilot.com/articles/2008/05/16/politics/dpt-gaymarriage05162008.txt
מרנא תא
It never ceases to amaze me that people cannot differentiate between their church's definition of marriage and the civil definition of marriage.
I also never ceases to amaze me how many people can embrace divorce, give short shrift to adultery, remarriage after remarriage, and claim to have their "family values" intact, and then (societally) damn two men or two women who actually commit to living up to those values of love, simply because they are of the same sex.
Simply pathetic.
Tao..,
Divorces are bad...same sex relationship is worse!
Romans 1:26 ".......Men committed indecent acts with other men, and received in themselves the due PENALTY for the PERVERSION"
From yesterday's OC Register, that font of rabid, raging liberalism:
The California Supreme Court decided Thursday that California's laws defining marriage as a union between a man and a woman violate the state constitution and that same-sex couples must be allowed to enter into legally recognized marriages. The decision is bound to be controversial – and is likely to be contested at the ballot box in November – but it is eminently defensible.
As a practical matter, this decision will have only a limited impact on the legal status of same-sex couples. In 1999 the state Legislature established a domestic-partner registry and conferred many of the legal rights and obligations accruing to married partners to cohabiting same-sex couples. Since then the Legislature has gradually expanded the legal privileges of domestic partners until they are virtually the same as married couples have, including the right to file joint state tax returns.
However, in 2000 California voters enacted a 14-word initiative: "Only marriage between a man and a woman is valid or recognized in California." With its decision Thursday the Supreme Court declared this provision to be unconstitutional and, therefore, invalid.
The 2000 initiative was a statutory initiative, that is, it put a law in place rather than amending the state constitution. Opponents of same-sex marriage have collected signatures for a similar provision that would amend the constitution to permit recognition only of opposite-sex marriages. If it qualifies and passes, it would reverse this decision.
This marriage decision is a departure from tradition, but the high court recalled an earlier decision that also represented such a departure. California had laws prohibiting interracial marriage from before it was a state. Yet in 1948, in its Perez decision, the California Supreme Court decided that such laws were invalid because the right to marry is a fundamental individual right, and that prohibiting people of different races to marry violates this right and violates the principle of equal protection of the laws.
The issues in the current case are not identical, but close enough that this decision is justified as well. Prohibiting same-sex couples from marrying, even though they can have most of the privileges of marriage, is an act of discrimination that is not countenanced under California's constitution.
In our view, the state should have little or no role in defining or regulating so intimate a relationship as marriage. People should be free to call their relationship a marriage if it is loving and committed, and churches should be free to decide whether or not to bless such relationships.
Given the reality that the state has inserted itself into so many aspects of our private lives, however, and that it treats married couples differently from those who are simply cohabiting, this decision was virtually inevitable as an expression of simple fairness.
1 Corinthians 2:9 " Do you not know that the wicked will not inherit the kingdom of God? Do not be deceived: neither the sexually immoral nor idolators nor adulterers nor male prostitutes nor HOMOSEXUAL OFFENDERS"
CRA,
I find the term "sexually immoral" to be ambiguous.
If my wife blows me is that immoral?
What is yours does?
Further, What does this say for the Priests or crack smokin' pastors with gay prostitutes?
I don't mean to be offensive; I am serious, who gets to police scripture? We know for sure from listening to the Christan right, that Muslims, Jews and Buddists will never be allowed even on the off ramp to the "promised land".
Sounds like a pretty boring place, if you ask me.
Not boring, just cliche.
Because there are differences on minor issues of morality like fellatio, then therefore all differences are ambiguous and there is not such thing as objective right annd wrong?
Thanks Mr. Relativist for that totally unoriginal mind-spasm.
Is The Proposed “Limit on Marriage” Constitutional Initiative Too Late?
The recent California Constitutional Right to Marry case, according to independent analysis, calls into question the currently proposed “Limit to Marry” Voter Initiative Constitutional Initiative. If Secretary of State Debra Bowen places it on the ballot, she would be wise to have the Legislative Analysts’s opinion consider the following cited cases and also discuss the issue with Attorney General Jerry Brown to inquire whether or not the proposed initiative can even be legally placed on the ballot.
California Governor Arnold Schwarzenegger, Assembly member Mark Leno, San Francisco Mayor Gavin Newsome, and Equality California Executive Director Geoff Kors, and one of the main attorneys on the winning side of the marriage case, David Codell would be wise to immediately contact Bowen and Brown to raise the issue of the legality of the proposed initiative so that the voters of California are properly informed that there may be a potential problem in enacting the initiative if it passes this November (assuming it qualifies for the ballot).
As noted in McFadden v. Jordan (1948) 32 Cal.2d 330, 333: “The initiative power reserved by the people by amendment to the Constitution in 1911 (art. IV, s 1) applies only to the proposing and the adopting or rejecting of ‘laws and amendments to the Constitution’ and does not purport to extend to a constitutional revision.”
The proposed initiative appears to now attempt to revise the California Constitution to remove the equal protection that gays and lesbians are now afforded under the California Constitution. With that in mind, the Secretary of State must be aware of the following case:
Rippon v. Bowen (2008) 160 Cal.App.4th 1308, 1313:
Article XVIII of the California Constitution allows for amendment of the Constitution by the Legislature, or initiative and revision of the Constitution by the Legislature, or a constitutional convention. There is no other method for revising or amending the Constitution. ( Livermore v. Waite (1894) 102 Cal. 113, 117, 36 P. 424 ( Livermore ).)…
“ ‘[A]mendment’ implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.” ( Livermore, supra, 102 Cal. at pp. 118-119, 36 P. 424.) The “revision/amendment analysis has a dual aspect, requiring us to examine both the quantitative and qualitative effects of the measure on our constitutional scheme. Substantial changes in either respect could amount to a revision.” ( Raven v. Deukmejian (1990) 52 Cal.3d 336, 350, 276 Cal.Rptr. 326, 801 P.2d 1077 ( Raven ).) “[A]n enactment which is so extensive in its provisions as to change directly the ‘substantial entirety’ of the Constitution by the deletion or alteration of numerous existing provisions may well constitute a revision thereof. However, even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also.” ( Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 223, 149 Cal.Rptr. 239, 583 P.2d 1281 ( Amador ).)
According to the In Re Marriage Cases (May 15, 2008) 2008 WL 2051892: “Although our state Constitution does not contain any explicit reference to a “right to marry,” past California cases establish beyond question that the right to marry is a fundamental right whose protection is guaranteed to all persons by the California Constitution…. In light of the fundamental nature of the substantive rights embodied in the right to marry - and their central importance to an individual’s opportunity to live a happy, meaningful, and satisfying life as a full member of society - the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation. ”
The proposed initiative originally sought to limit the Constitutional right to marry to opposite sex couples and, thus as originally drafted, it was intended to limit the right to marry to a man and a woman. But an amendment can no longer accomplish this. The Right to Marry exists and in light of the recent ruling, the initiative’s unintended consequence is an attempt to revise (as opposed to amend) the Constitution which, as explained in In Re Marriage Cases (May 15, 2008) 2008 WL 2051892, is a fundamental Constructional right to “all individuals and couples, without regard to their sexual orientation.”
“Whether an initiative constitutes an amendment or revision to the Constitution does not necessarily depend on the number of constitutional provisions it affects, but on the nature of the changes it makes. (Grodin et al., The California State Constitution: A Reference Guide, supra, at pp. 303-304.) For a revision to be found, “it must necessarily or inevitably appear from the face of the challenged provision that the measure will substantially alter the basic governmental framework set forth in our Constitution.” See California Assn. of Retail Tobacconists v. State of California (2003) 109 Cal.App.4th 792, 833-834 (quote set forth more fully below).
As Justice Moreno noted in a concurring opinion in Californians For An Open Primary v. McPherson (2006) 38 Cal.4th 735, 788:
Voters can propose amendments to the Constitution that will be placed on the ballot if the requisite number of signatures are obtained, but they may not propose constitutional revisions. (See Cal. Const., art. XVIII, § 3; Raven v. Deukmejian (1990) 52 Cal.3d 336, 349, 276 Cal.Rptr. 326, 801 P.2d 1077.)
See California Assn. of Retail Tobacconists v. State of California (2003) 109 Cal.App.4th 792, 833-834:
Although the electorate may amend the Constitution by initiative (art. XVIII, § 3), a revision of the Constitution may be accomplished only by a constitutional convention and popular ratification (art. XVIII, § 2) or by legislative submission of the measure to the electorate (art. XVIII, § 1). ( Raven v. Deukmejian, supra, 52 Cal.3d at p. 349, 276 Cal.Rptr. 326, 801 P.2d 1077; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 221, 149 Cal.Rptr. 239, 583 P.2d 1281.) It has been suggested “the revision provision is based on the principle that ‘comprehensive changes’ to the Constitution require more formality, discussion and deliberation than is available through the initiative process. [Citation.]” ( Raven v. Deukmejian, supra, 52 Cal.3d at pp. 349-350, 276 Cal.Rptr. 326, 801 P.2d 1077; cf. Legislature v. Eu, supra, 54 Cal.3d at p. 506, 286 Cal.Rptr. 283, 816 P.2d 1309.) The revision/amendment analysis requires the court “to examine both the quantitative and qualitative effects of the measure on our constitutional scheme[, as] [s]ubstantial changes in either respect could amount to a revision. [Citations.]” ( Raven v. Deukmejian, supra, 52 Cal.3d at p. 350, 276 Cal.Rptr. 326, 801 P.2d 1077; Legislature v. Eu, supra, 54 Cal.3d at p. 506, 286 Cal.Rptr. 283, 816 P.2d 1309.) Whether an initiative constitutes an amendment or revision to the Constitution does not necessarily depend on the number of constitutional provisions it affects, but on the nature of the changes it makes. (Grodin et al., The California State Constitution: A Reference Guide, supra, at pp. 303-304.) For a revision to be found, “it must necessarily or inevitably appear from the face of the challenged provision that the measure will substantially alter the basic governmental framework set forth in our Constitution. [Citations.]” ( Legislature v. Eu, supra, 54 Cal.3d at p. 510, 286 Cal.Rptr. 283, 816 P.2d 1309, original italics.)
Therefore Schwarzenegger, Bowen, Leno, and Newsome should use their constitutional powers to obtain an opinion of the Attorney General as to whether the initiative is an amendment or a revision that would revise the equal protection clause as it relates to gays and lesbians.