Prop 8

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.

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.