As predicted, supporters of Prop 8, the California initiative to ban same sex marriage, will ask a court to order changes to a new title and summary. The new t-s reflects the state supreme court decision by saying that the initiative limits a right (albeit a judicially determined right found nowhere in the text). The new summary also says the state would lose tax revenues related to same-sex marriage.
Such litigation over title and summaries is common, but the interest in same sex marriage will bring more scrutiny to the process. One non-lawyer's opinion: the Prop 8 supporters have a decent chance of getting the summary changed with regards to the tax issues. They'll be able to argue, I suspect, that no one really knows the fiscal impact of this. Yes, banning same-sex marriage may cost us tax revenues, but they could argue that people and companies could leave the state if same-sex marriage remains legal.
I believe they'll have a tougher time convincing a judge to reverse the new language that the initiative eliminates a right. Prop 8 supporters may not like it, but the legal fact is that the supreme court identified a right to same-sex marriage in the state constitution.
The San Francisco Chronicle has details.
REVISED, 7/28 (Earlier version said incorrectly that the Secretary of State writes title and summary; the attorney general does it.). The official title and summary has changed for the California initiative to ban gay marriage, in two significant ways. The new title-summary reflects the state supreme court decision determing there's a right to such marriage by adding that the ban would take away a constitutional right. The fiscal analysis also notes that the state would lose some tax revenue that is attributed to gay marriages. Expect litigation on both points. Supporters of the ban, Prop 8, could argue that we don't know the overall tax effect and that the legalization of same sex marriage could convince some people and businesses to leave the state, costing California tax revenues. They also could challenge the idea that the initiative takes away a constitutional right or amends the constitution.
Backers of Prop 8, the California initiative to ban gay marriage, write in an argument submitted for the official November ballot pamphlet that if their measure does not win, kindergarten teachers would be required to teach about gay marriage. (And specifically, to teach there is no difference between gay marriage and opposite-sex marriage). The Yes on 8 campaign argues that such instruction would be mandatory because of state law that requires comprehensive health instruction for all grades, K-12. Part of that instruction, under law, requires teaching in "the legal and financial aspects and responsibilities of marriage."
Yes, but it takes a half-dozen leaps of logic to an imagined requirement about teaching gay marriage parity in kindergarten. The argument is nonsense. The law says nothing about requiring that marriage be taught in kindergarten, and nothing about how you teach it. The gambit is described more fully in this San Francisco Chronicle story.
Jessica Garrison of the LA Times has a terrific story today about how the California ballot initiative to ban same-sex marriage, Prop 8, came together. She points to a moment last year when San Diego Mayor Jerry Sanders, instead of vetoing a bill to support gay marriage, declared that one of his daughters was gay and signed it. Conservative opponents of same-sex marriage felt betrayed -- a feeling that fueled the campaign. The story also demonstrates how much the anti-gay marriage campaign is a product of San Diego, its politics, and its churches.
Gay marriage supporters have organized a boycott of San Diego hotels whose owner is a donor to Prop 8, the California initiative to ban same-sex marriage. The New York Times takes notice here. One important bit of news: opponents of gay marriage are highlighting the boycott to attempt to spark a backlash and raise money. I wonder if they're on to something. The No on Prop 8 campaign -- which is the pro-gay marriage side -- can only lose if it seems to attack opponents of gay marriage in a way that seems to be attacking their religion. (The hotelier, Doug Manchester, is a Catholic). They need to make the positive case for the rights of gay couples to marry, and to emphasize that passing the initiative could lead to cancellation of those couples who have recently married. This campaign is a fight over voters who are undecided on the issue -- voters who are comfortable with gay couples but aren't sure about calling their unions marriage. These aren't voters who are going to respond to attacks or boycotts; in fact, they may shrink from them.
Frank Schubert, the longtime political consultant and initiative expert who is managing the Prop 8 (ban on gay marriage) campaign in California, has an interesting bit of spin in response to the Field Poll. He notes that the numbers have moved -- ever so slightly -- in the direction of the initiaitve since a previous survey. (One note: the movement is within the poll's margin of error). He also offers an interesting historical tidbit: back in 2002, the Field Poll significantly underestimated support for Prop 22, the successful 2000 initiative that added a ban on gay marriage into state law. It was Prop 22 that was overturned by the California Supreme Court in May. The new initiative would place a ban on gay marriage in the state constitution.
No (which is the pro-gay marriage side of Prop 8) had 51 percent and yes had 42 percent in the poll, the results of which are here. While that may seem close, it's very good news for those who support same sex marriage. In ballot measure campaigns, most undecided people break no, and it's much more common for the "no" side to make gains as a campaign progresses. One rule of thumb is that an initiative without at least 60 percent support in the early stages is by definition an initiative in trouble.
Breaking News: California Supreme Court Refuses To Hear Challenge To Initiative Banning Gay Marriage
The challenge sought to knock the initiaive off the ballot. So the campaign is on. AP story on the court's decision is here.
Today the state supreme court holds a conference and could decide whether to accept or reject a petition by gay marriage supporters that seeks to remove the initiative banning same-sex marriage from California's November ballot. The petition argues that, because of the court's recent decision declaring that gay couples have a constitutional right to marry, the initiative, which would write its ban into the state constitution, constitutes not an amendment of the constituion -- which can be done by initiative -- but a constitutional revision, which requires approval of either the legislature or a constitutional convention. The LA Times' opinion blog has a deeper explanation here.
I may be a little slow in updating, so check the LAT opinion blog for updates. I'm spending the day driving north from Los Angeles (which Shaquille O'Neal correctly called "the real capital of California") to official capital Sacramento. All those chairs have been left empty by legislators who have decided to go on vacation instead of passing a budget, and your blogger is a man with a new apartment and a desperate need for some furniture.