Same-Sex Marriage: Who Decides -- Calif. voters have, by initiati ve

Mae Kuykendall mae.kuykendall at law.msu.edu
Wed Sep 7 09:06:24 PDT 2005


Mark Scarberry writes:

"The authors of the bill that just passed the state legislature take
the position that the initiative statute prohibits only the recognition
of out-of-state same-sex marriages (e.g., a Massachusetts same-sex
marriage), and thus leaves the legislature free to authorize same-sex
marriage within California. The governor does not believe the
legislature should ignore the clearly expressed wishes of the voters in
this way."

Query:  Why would not review of the legislation, once it achieves final
approval through signature of the governor, be a good way to present the
question to the courts of what the people of California meant to
prohibit in the initiative they approved (putting aside any controversy
about whether California law permits them to do whatever it is they were
trying to do)?

Mae Kuykendall

>>> "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu> 09/07 11:18 AM
>>>
Of course the legislature ordinarily should decide this matter. But
what
none of the posts yet has noted is that the people through the
initiative
process enacted a statute that prohibits California from recognizing
same-sex marriage. The initiative statute is under attack in the courts
(on
state constitutional grounds, I believe), and the governor wants the
validity of the initiative statute to be determined in the courts,
rather
than having the legislature reverse the decision of the people. 

Very clearly the legislature does not have power under California law
to
repeal the initiative statute. The authors of the bill that just passed
the
state legislature take the position that the initiative statute
prohibits
only the recognition of out-of-state same-sex marriages (e.g., a
Massachusetts same-sex marriage), and thus leaves the legislature free
to
authorize same-sex marriage within California. The governor does not
believe
the legislature should ignore the clearly expressed wishes of the
voters in
this way.

Mark Scarberry
Pepperdine

-----Original Message-----
From: Neil B. Cohen
To: RJLipkin at aol.com; CONLAWPROF at lists.ucla.edu 
Sent: 9/7/2005 7:58 AM
Subject: RE: Same-Sex Marriage: Who Decides

A spokesperson for Governor OLE_LINK1Schwarzenegger made the point
even
more bluntly.  As reported by the Times:

 

"A spokeswoman for Mr. Schwarzenegger, Margita Thompson, said after
the
vote that the governor believed that the issue of same-sex marriage
should be settled by the courts, not legislators."

 

Political expediency (a stronger term might be inserted here)
certainly
makes for odd jurisprudential bedfellows.

 

__________________________________

Neil B. Cohen

Jeffrey D. Forchelli Professor of Law

Brooklyn Law School

250 Joralemon Street

Brooklyn, New York 11201

Telephone:  (718) 780-7940    Fax:  (718) 780-0375
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