It's heartening when something you've read and written about less than a month ago becomes reality.
On May 27, I posted a diary here about Kevin Norte's legal analysis of the upcoming ballot initiative which would change California's constitution to define marriage as only between a man and a woman. According to Norte's analysis, this change is a revision, not an amendment, and thus cannot be decided by a simple-majority ballot initiative. Later that week, I called both Congressman Mark Leno's office and Mayor Gavin Newsom's office, to let them know about the analysis Norte had done and where they could find it. Both offices were surprised and excited to hear about it, and said they'd pass it on to their legal teams.
On Friday, EQCA and several other civil rights groups filed suit to have the California Supreme Court remove the initiative from the ballot, in part because it constitutes a revision, not an amendment.
Come with me over the jump for a look at the brief they filed.
(Now, I don't know if my calls had anything to do with this brief and lawsuit, but I'd like to think they did. (Hey, I'm human.) Even if they didn't, the argument is being made, and I'm thrilled... because it's a powerful argument and backed up by a lot of constitutional case law. One of the things I find most delicious about this is that the PDF of the brief is available on Alliance Alert, the Alliance Defense Fund's website, here. I appreciate their thoughtfulness in making the text of the brief available to those of us who like reading such things!)
The brief covers four major points. The first is a listing of the basic facts of the case. This listing includes the telling fact that even though the ADF and other anti-equality sponsors of the initiative were aware that the legality of marriage equality was in play in the courts before they even submitted their petition to the legislative analyst for analysis, prior to receiving approval for signature gathering, they did not communicate that fact to their signatories. This means that they were misleading their signatories both about the legal effects of their petition and about the economic effects. They knew there was a possibility the Court would rule in our favor, in which case their petition would be invalid on its face.
The second point covered is about the revision vs. amendment issue. In a well-reasoned and logical series of points, the writers of the brief note the following:
- This initiative constitutes a revision of the state constitution.
This part of the brief simply describes the differences between a revision and an amendment. Revisions alter the underlying principles or functioning of the government and constitution. Amendments do not.
- Revisions cannot be enacted through the initiative process but only by a constitutional convention, or a two-thirds approval of a revision by both houses of the legislature, followed by a general-vote ratification of the measure.
This part of the brief describes the ways in which revisions are enacted under the California constitution.
- As sexual orientation is now a suspect class due to the May 15th ruling, this initiative is trying to circumscribe the rights of a suspect class by writing discrimination into the constitution, and, by doing so, "Destroy the Courts' Quintessential Role of Protecting Minorities Against the Deprivation of Equal Protection and Other Fundamental Rights" (p. 16 of the brief).
I think this part of the brief is compelling partly because it points out that the initiative is attempting an end-run around both the legislature and the courts. Neither one is good, or legal.
Then the brief delves into detail. The following points are sub-headings under #3 above.
a. Equal protection is a core principle of the constitution, and this initiative would fundamentally change that.
This section leans heavily on the Marriage Cases decision of May 15, but it also goes into other examples of equal protection and how they were resolved. This also seems to be the bedrock claim of the brief - everything else rests on equal protection to some extent. I quote:
As Professor Kenneth Karst has rightly emphasized, the requirement of equal protection is not merely a "rule for decision" but "an informing principle" that permeates every facet of our constitutional system (p. 18).
In other words, a simple vote can't overturn something that fundamental, and this initiative is a revision in amendment's clothing.
b. Equal citizenship is a core principle of the constitution, and this initiative would fundamentally compromise that.
How do we say someone is an equal citizen if they don't have all the rights of equal citizens? This one is pretty much a no-brainer. Again, I quote:
In seeking to deprive members of a group defined by a suspect classification of a fundamental right, the Proposed Initiative would severely compromise a basic structural element of our Constitution - the principle that all laws must treat similarly situated people equally and that all persons, including minority group members, are entitled to equal dignity and respect. As a result, if enacted, the Proposed Initiative would destabilize our Constitution and our basic government plan in a manner that far transcends its immediate impact on a particular group, by establishing that any group may be deprived of equal protection and fundamental rights through a simple majority vote (p. 22-23).
This is telling. Do you want your rights vote-away-able? I doubt the Justices do either. And really, I doubt even the fundamentalists want to have their right to, say, freedom of religion open to majority vote. Yet that's precisely what they're opening the door to if this initiative passes.
c. The authority of the courts to enforce basic constitutional guarantees is endangered by this proposed initiative.
Ah, now we're hitting the Justices where they live. Abrogating the power of the courts? I doubt they'll be good with that. I love that they quote Scalia here to support this particular point:
As Justice Scalia has noted, "What [protects us from oppressive laws] ... is the Equal Protection Clause, which requires the democratic society to accept for themselves and their loved ones what they impose on you and me" (p. 27).
(Allow me to be slightly smug that Scalia's words are being used to defend my rights here. To me, this is just classic. I can almost hear him screaming incoherently. smug)
All right, moving on. The writers also point out in this part of the brief that any initiative which tries to restrict or eliminate a fundamental right is bad enough, but when it tries to take it away only from a particular class of citizens, that's even worse. Again, I quote:
Regardless of whether a particular right (for example, the right to speak, to practice one's religion, or to marry) should be recognized at all under the state Constitution, once such a right is recognized and is acknowledged as fundamental under the state Constitution, any attempt to withdraw that right from a particular group of people necessarily not only alters the fundamental nature of that right and the equality of all Californians, but also strips state courts of their authority to enforce the Constitution's equality guarantees ... [T]he very point of equal protection is to ensure against rights being denied selectively to unpopular minorities (p. 28).
d. Article XVIII of the constitution should be enforced.
Here, the writers specify that they're not asking the Court to decide on the question of whether these changes are permissible at all - only whether they can be made through the process of a ballot initiative. They've substantially supported the claim that no, these changes cannot be made by ballot initiative.
- The next part of the brief - the third major section of discussion - goes into why this decision needs to be made before the election, rather than afterwards. The main points here are:
a. Because the initiative is trying to revise, rather than amend, the Constitution, it may not be submitted to the voters. This goes directly to the constitutional basis for initiatives vs. revisions.
b. Because the initiative would remove fundamental rights from a suspect class of people, it may not be submitted to the voters. This goes back to the equal-protection argument of 3.a. and the equal citizenship argument of 3.b. above.
c. There is state constitutional precedent for pre-election review of initiatives that carry serious consequences "if consideration of the validity of a measure is delayed until after an election" (p. 33). In this case, there are very serious consequences, already discussed - not just for GLBT people, but for the equal protection and equal-citizenship guarantees of the Constitution as well as the power of the judiciary.
The fourth point made, and the rest of the brief, discusses why the petition is materially misleading, in that it claimed no fiscal impact and no change to California's marriage laws. Although that was technically true when they were collecting signatures, the brief points out that the sponsors of the initiative knew that the Court was considering the question of whether marriage was exclusive to opposite-sex couples under the Constitution, and thus they also knew that this assessment by the Attorney General's office might be substantially different by the time the election rolled around. Yet they persisted in their signature-gathering and misrepresentation of the fiscal and legal impact of the measure. By that argument alone, it should have to be removed and resubmitted.
Here's the money quote:
In short, the description of the Proposed Initiative presented to voters who signed the petition was inaccurate and misleading when it was promulgated; moreover, now that the Court has clarified the relevant provisions of California law, it is apparent that the description was indeed dramatically misleading. The statements that the initiative would not change existing law and would have no fiscal effect do not merely fail to provide a complete or thorough description of what the initiative would do ... [T]hey are completely inaccurate and fail to describe the primary impact and purpose of the proposed measure. Those errors cannot be "retroactively" corrected merely by updating the official summary because no one knows how many petition signers (including fiscally conservative signers) would have declined to support the initiative petition if they had known that the Proposed Initiative would change the law by eliminating an existing right and would cost state and local governments millions of dollars in income because of decreases in tax revenues and fees. The petitions voters signed described a proposed measure that is very different in its purpose and effect than the the measure that will be before the voters in November, unless the writ sought by this Petition is granted (p. 38-39).
Looking at this, I don't think that the petition sponsors have a chance in hell of this thing remaining on the ballot for November. It's unconstitutional both in what it would do and in how it would do it. I think we may even see an 7-0 ruling on this.
And wouldn't that be lovely?
And hey, if it gets yanked from the ballot, there will be a lot of neocon voters staying home on Election Day. That's a plus that none of us can ignore!