Watch the Ballot Pamphlet!

Douglas Kmiec, the Pepperdine University law professor best known as a conservative supporter of Barack Obama, opposes same-sex initiative and thus supports the November ballot initiative to ban it in California. In a piece outlining his opposition, he makes an interesting point that should draw the notice of gay marriage supporters.

Kmiec sees potential legal issues in th language drafted in support of and against the initiative for the official pamphlet that goes to voters. The professor argues that if the language in favor of the measure (that is, opposing gay marriage) is vague, then it could open the door to a legal challenge to the initiative if it were to pass.

Here's how Kmiec explains it:

"Because an affirmative vote is obviously intended to reverse the recent 4-3 opinion that wrongly overruled the people, the supporting ballot explanation should retain this simplicity. To avoid litigation, however, that explanation should explicitly indicate the effect of passage as reversing both the decision and reasoning of the court. Were the initiative to be narrowly portrayed in the ballot pamphlet as only denying that same-sex marriage is a fundamental right, the overly litigious would be tempted to argue that the court's additional holding that sexual orientation is a suspect class was untouched by the balloting, leaving an avenue to block the people's will yet again. The state Attorney General and Secretary of State should not allow this judicially active mischief."

The whole piece is here.