Courts frequently employ the concept of legislative intent to resolve cases in which legal ambiguities must be adjudicated. In the case of Proposition 8, a slim majority of California voters voted "yes" on the initiative/constitutional amendment. In the process, this majority vote apparently deprived a significant majority of its civil rights, the "equal rights under the law" which are still guaranteed by both the California and U.S. Constitutions.
Is this what more than 50% of voters intended to do? More after the break...
Were the California Supreme Court to investigate the "legislative intent" of California voters, they should consider the argument made the proponents of Prop 8 in its radio and television ads. This is the argument I heard repeatedly made:
(1) Under the current state of the law, the public schools would be forced to "teach about gay marriage" to California school children.
(2) Under the current state of the law, churches opposed to gay marriage could lose their non-profit status.
Granted, these were phony arguments — and demonstratively inaccurate — but this is the message that was used to persuade California voters to vote "yes" on Proposition 8. I would argue that these advertisements established "legislative intent."
It follows that these two concerns can be mitigated without depriving gays and lesbians of their full equality under the law. The California Supreme Court can simply make a declarative judgment addressing the two specific concerns raised by the proponents of the proposition in their political advertising. In other words, the Court can issue two simple clarifications about its prior ruling in favor of gay marriage:
(1) California's Constitution does not require public schools to address the subject of gay marriage in its curricula.
(2) Clergy have the absolute freedom to decide which marriages they will or will not perform, and they can exercise this right without their religious organizations facing any risk of loss of tax exempt status.
These concerns — on the basis of which a bare majority of California voters approved Proposition 8 — can be mitigated with these simple declarative statements. Voters' concerns can be adequately resolved by means less drastic than depriving gay Californians of their equal rights under the law and the Constitution.
Political advertisements have consequences; they establish legislative intent. It might not be a bad thing to establish this as a legal principle as it would lead to more truth in political advertising. What do you think?