Bil Browning

California legislature to step into Prop 8 battle?

Filed By Bil Browning | December 02, 2008 6:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: California, California Assembly, Mark Leno, Prop 8, Prop 8 battle, Prop. 8

The California legislature appears to be marriage-equality.jpgwhipping out the "Checks and Balances" card...

Senator Mark Leno and Assemblyman Tom Ammiano introduced resolutions today in their respective houses. The legislation deems Prop 8 a revision to the state Constitution that should have gone through the legislature first and notes the body's disapproval of the amendment.

Under California law, a Constitutional amendment is put to a popular vote, but any major revision to the Constitution has to pass both houses of the legislature by a 2/3 majority before being submitted to a vote.

Governor Arnold Schwarzenegger has also expressed his opposition to Prop 8. The legislature has twice passed legislation to legalize same-sex marriage, but it was vetoed by the Governor both times.

In May, the California Supreme Court ruled 4-3 that denying civil marriage to one class of people violated the Constitution's promise of equal protection. The ruling invalidated a previously passed voter initiative which previously put the identical language of Proposition 8 into state statute. With the subsequent passage of Proposition 8 in November, the Supreme Court will consider several lawsuits that have since been filed.

"Proposition 8's revision to the California Constitution violates key structural checks and balances built into our legal system," Senator Leno added. "Overnight, the constitutional protections of thousands of tax paying, law abiding California citizens were stripped from them by a simple majority vote, without a prior two-thirds vote by both houses of the legislature, thereby trampling on their fundamental right to equal protection."

"Any major revision to the state Constitution should not be allowed to circumvent the legal system," said Assemblyman Ammiano. "The fact is, Proposition 8 was improperly instituted through the ballot process without legislative involvement. I am proud to author this crucial resolution urging the courts to right the social travesty of Proposition 8 and ensure any similar future measures are approached in an appropriate and legal manner."

Prop 8 opponents are using the same arguments in their case before the California Supreme Court. I'm curious what legal impact it would have on the case if the legislature passed Leno and Ammiano's resolutions. Anyone know?


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I don't really understand how all of this can happen in the first place. How can something get in the ballot without being approved in Congress? I suppose I'm showing my ignorance of due process.

caseylankow: Multiple things:

1. "Congress" is the legislature of the United States of America (House of Representatives and Senate). It has no direct involvement with the governing documents of the State of California, whose legislature consists of the State Assembly and State Senate. So the "Congress" is not involved in California's state constitutional amendment process.

2. California is one of the states that has a whole lot of direct democracy going on, by means of initiative statutes and initiative constitutional amendments. One of the paths to amending the constitution of the state of California involved collecting enough signatures of registered voters; such amendments then go onto the next statewide ballot, where they need only a majority to pass. (That's what Prop 8 was.) The other path requires 2/3 votes of both houses of the state legislature (Assembly & Senate), after which it goes on the ballot and again needs a majority for ratification.

The key issue in this case is that the former route (initiative) may be used only for "amendments," while the latter (via the legislature) can be both "amendments" and "revisions." Neither term is defined; the courts have to make that decision.

mdmooreinsacramento | December 3, 2008 2:53 AM

Resolutions have no legislative impact. They are simply mechanisms of communication for the two houses to use for announcement; i.e., to signal to the courts of their intention. The Court expects as much as a part of its decision to consider the validity of Prop 8 this spring.

As mdmoore said, there's no legal impact, since resolutions are non-binding (nor do they need to be signed by the governor). They're used by legislatures to voice an "official" POV on a variety of things -- from minor ones (such as the ones congratulating Eagle Scouts, etc.) to serious ones like Prop. 8.

The main effect would be signaling their support to California Supreme Court for overruling Prop. 8. I.e. if the Legislature (and possibly the governor) take the position that it's usurping their powers, that may carry some weight with the court, if not officially, then certainly unofficially.

Not to mention providing some political cover if the court does overturn Prop. 8. I.e. the "ignoring the will of the people" argument is defanged somewhat if the Legislature strongly opposed it.

Thanks for the info, Lena and md. That's different from how it works in other states (including Indiana!)

This is also helpful because the lawsuit's argument basically comes down to checks and balances. Under this view, the legislative branch of CA is one of the parties that lost some of its rights w/ prop 8.