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In an analysis published today on both Metnews.com and the Log Cabin Republicans blog, Kevin Norte wrote a scathing analysis of the legal issues behind the anti-equality initiative which is currently working its way through validation proceedings and aimed at the California ballot in November. Norte has been a research attorney for the Los Angeles Superior Court since 1991.

According to Norte's analysis, the initiative cannot legally proceed to the ballot because it constitutes a revision, not just an amendment, of the California Constitution.

If this is the case, then the GLBT people of California have nothing to fear from this ballot initiative. It's already dead in the water. It's a moot point. Even if it was passed, it could not be enforced. It's already as archaic as the anti-sodomy, anti-miscegnation and Jim Crow laws are.

More after the jump...

Norte cites several sets of case law, but what it boils down to is that California citizens can amend the Constitution by ballot initiative, but they cannot change the fundamental parts of it (such as fundamental rights granted, and fundamental workings of the government) by ballot initiative. Changes of that scale are called revisions, and revisions can only be accomplished by a constitutional convention and popular ratification of the changes made by the convention, or by the Legislature passing the change and submitting it to the electorate for popular ratification.

With the CA Supreme Court ruling on May 15th, marriage was reaffirmed as a fundamental right in California, and furthermore, sexual orientation was placed into a protected category, subject to strict scrutiny. Therefore, a ballot initiative cannot take away that fundamental right, because that kind of a change is a revision of the Constitution, necessitating a constitutional convention. Additionally, any attempt to do so will come under the heading of strict scrutiny, which means that the government must show a compelling reason why it is excluding people from marriage. That cannot be done; there is no compelling reason. Ron George and his fellow justices made sure that they eliminated those arguments in their majority opinion.

The kicker? This:

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 fundamental right to marry as it applies to same gender couples because it would remove that right for them and deny gays and lesbians equal protection as it applies to that fundamental right.

In other words, they're going to have to ask Jerry Brown his legal opinion on this, and then follow it. Jerry Brown, mind you. The champion of the little guy and the minority.

Thank you, Ron George and the other justices who ruled for us. You set this ruling in stone six ways from Tuesday, and the way the law in California works, there's no way the bigots can countermand you. You have done an amazing thing for the people of this state.

I can hardly wait to see how this pans out.

(Please recommend this diary. Send the links above to your state representatives and senators, too, if you're in California. It's important that the message get out there that there's a real, legal, constitutional basis for denying the ballot initiative a space on the ballot, regardless of the number of signatures.)

Thanks are owed to a good friend of mine, Joe Decker, on LiveJournal, who spotted this and pointed it out to others. (Edited to add his name once I received permission.)

Originally posted to Killer of Sacred Cows on Tue May 27, 2008 at 02:35 PM PDT.

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