Title And Summary

Supporters of Prop 8, the California ballot initiative to ban same sex marriage, have gone to court to reverse changes in the official title and summary. Their petition is available here.

After reading the briefs, I think the supporters have a strong case. The original title and summary, approved before the state supreme court decision legalizing same-sex marriage, read simply, "LIMIT ON MARRIAGE. CONSTITUTIONAL AMENDMENT. Amends the California constitution to provide that only marriage between a man and a woman is valid or recognized in California." After the court decision, the title now says, "ELIMINATES RIGHT OF SAME SEX COUPLES TO MARRY..." That's very, very argumentative. Whether there is such a right in the California constitution is the focus of the legal and political dispute that voters will decide in November.

Attorney General Jerry Brown has some justification for he change. The court identified a constitutional right to marry that includes same-sex couples. But the first title remains accurate, and the Prop 8 supporters should be able to put Brown on the defensive. The attorney general has publicly taken sides in the controversy. Your blogger thinks he's on the correct side, but in ballot initiative titles, the a.g. is supposed to accurately describe the measure, not argue the case. The outcome is important, as these titles do affect undecided voters.

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.

California Attorney General Jerry Brown, a likely candidate for governor in 2010, has indicated support for the legalization of same-sex marriage. But a recent lawsuit by supporters of gay marriage seeks to knock the initiative that would ban such marriages off the November ballot. One argument of the lawsuit is that the official title and summary Brown's office gave the measure is wrong, because of the Supreme Court decision legalizing such marriages.

The original title and summary said the initiative would not change state law and would not have any fiscal impact because the way marriages are conducted would not be altered; after the court decision legalized same sex marriage, that was no longer true.

But that title and summary were written months before the court decision. In an amicus brief filed with the court, the attorney general's office defends itself along these lines and argues that an initiative cannot be thrown off the ballot because a subsequent court decision changes its meaning.

The LA Times' Maura Dolan explains some of this here.

And the brief is attached here. (Hat tip Kevin Norte.)