Court Filing In Attempt to Knock Anti-Gay Marriage Initiative Off California Ballot
Joe Mathews -
June 24, 2008 - 5:38pm
Here's the filing. Last Friday, gay marriage supporters asked the California Supreme Court to take the initiative that would ban gay marriage off the November ballot. The argument is similar to one featured on this blog and advanced by Kevin Norte, a board member of the California PAC of the Log Cabin Republicans. The claim is that the initiative does not properly change the California constitution. This is a technical argument. And despite the supreme court's 4-3 ruling that legalized same-sex marriage last month, the court is unlikely to throw this off the ballot, legal scholars say.


















It's not all that technical,
It's not all that technical, and it's a pretty good argument. If the Court really believes (and it said it did, by a 4-3 margin, a few weeks ago) that gay and lesbian Californians are entitled to equal protection, and that strict scrutiny is required for any proposals to discriminate against them, then any proposal which subjects them to second-class citizenship would be a "revision" (alteration of our fundamental government structure), not merely an amendment (alteration of procedure that does not change fundamental structure), which means that it cannot be done by an initiative.
But There is NO Precedent on this issue
Jow,
Legal scholars are looking at the 2 issues in a vacuum. The first is the improper wording. It can only be raised pre-election or it is waived. The second is the revision argument. Sure it is an uncharted territory but the Court has been setting up such a challenge for years. This case might be ripe. Sure legal scolars (some) may say it is unlikely but this legal scolar says that it is uncharted terrifoty and what will happen by August 8, 2008 is anyone's guess.
Brown To Represent Bowen
The AG will not be offering a separate opinion but will be representing the SOS. They will file on Monday.
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