Nancy Polikoff

California anti-gay initiative might be derailed

Filed By Nancy Polikoff | June 24, 2008 1:30 PM | comments

Filed in: Marriage Equality, The Movement
Tags: anti-gay, California, gay marriage, National Center for Lesbian Rights

The astonishing lawyers at NCLR (National Center for Lesbian Rights) are at it again. Not only did they get us marriage in California, but they've come up with some very good arguments for sending the "Protect Marriage" folks back to the drawing boards...or at least the street corners.

Seems the initiative states that it "would have no fiscal effect on state or local governments." But the Williams Institute crunched the numbers and found that same-sex marriage will bring almost $700 million to California in the next three years...and $63 million in taxes. So the lawyers are arguing that the signatures were gathered under a false assertion.

They have another argument too. An initiative to amend the California constitution can't change it too much. That's the law. A revision of the constitution must go through a different process...not subject to an initiative. So the gay groups are arguing that the rights granted by the California Supreme Court decision are so sweeping -- and touch so many provisions in the constitution -- that they can't be voted on in an initiative.

Is this just one of those we-have-to-try-it-but-it-won't-work lawsuits? No way! These are solid legal arguments. But meanwhile, the massive political efforts rightly continue to defeat the initiative at the polls.

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Actually, the second argument you posted was formulated by the Log Cabinettes. It seems they are of some marginal use, after all.

Their argument, however, has been rejected in similar suits in other states, so it comes on shaky grounds. The first argument by the NCLR, however, is rather ingenious and compelling; props to them.

The first one makes a lot of sense. They have to present what each of those ballot initiatives will do to the state budget, and for good reason.

The signatures might have been gathered at a time when there wasn't any same-sex marriage in CA, but now there is, and they have to deal with the fact that the proposed amendment isn't just another law that changes nothing, but one that will change the legal and cultural landscape of CA.

Yes, that's right. It is part of the NCLR argument that it now changes the law, but when the signatures were gathered initiative sponsors said it would not change the law.

These are pretty big longshots, and we need to prepare for the actual ballot fight. While not an expert on California constitutional law, I am a lawyer and have been following this proposition quite closely (though none of this is legal advice).

On the revision vs. amendment side, that is a post-election fight that only happens if we lose. It's an interesting academic debate, but that's all it is for right now. As far as I know, there's no precedent for removing something from the ballot based on the revision argument. In fact, the "fundamental rights" part of the decision that Chief Justice George mentions in his footnote was dicta from a case that did not really involve such an issue. I'm pretty sure the "fundamental right" hasn't actually been used to overturn an amendment to this point. We have a good argument, but it's not a lock.

As for the false pretenses, well, I think it's a real longshot. Those numbers were put together by the California Legislative Analyst before the Court Ruling, not by the "protect marriage" folks. And they were accurate at the time of the signature gathering, because at that time the amendment wouldn't change anything in the real world. Now it does, so there is a fiscal impact. On the plus side, I'm pretty sure we have a pretty strong argument to get the ballot description to include a statement of cost to the state and localities.

But, not sure that there's anything really here that will boot the initiative off the ballot. Doesn't hurt to try as the arguments are reasonable, but let's keep mobilizing to win this fight.

By the by, we're tracking the initiative very closely at, the progressive community blog for California.

The first challenge is novel, but probably entirely true. Furthermore, it might be an argument that could be effectively argued in court, and thus prevail.

The second is a stretch, but every state constitution is worded differently, and it is worth a try, especially since the California constitution is relatively modern and has some features other state constitutions don't, such as an explicit right to privacy.

Keep in mind that knocking the referendum out entirely is not the only victory --- it would be worth doing even if we could postpone this referendum vote off from a presidential election ballot. In fact, postponing it until next spring might be ideal, depending on what else might be going on in California.

I thought it might be advantageous to have it taken off the November ballot - even if it ends up back on a ballot at later - at first, AJ, but I'm not so sure anymore.

At least if it is on the November ballot there is a chance that the Obama voters might just vote it down, if we can count on them at all.

If it gets put off until June 09 will those same liberal / progressive allies of ours bother to show up?

I have my doubts...

The repubs have always been more effective at rallying their base. Most backing the amendment are older individuals (35+), which are fairly active politically. Our demographic? Forget about it.