Does it matter how Prop. 22 sold (was: Same-Sex Marriage. . .)
hchamber at richmond.edu
Thu Sep 8 18:46:41 PDT 2005
Interesting story, but Vik (whom I consider a friend) overstates the case, just as Mark and Eugene do. But such disagreements make law worth discussing.
However, I have a different question. Clearly, a number of people believe that the text of Prop 22 indicates that it applies to both California and out-of-state same-sex marriages. Does it matter how a proposition is sold to the people by those who support it? That is, would it matter if Prop. 22 were sold to California voters as a measure that was necessary to stop out-of-state same-sex marriages from being made valid in California? Or is the only relevant issue what the words of the initiative say or mean? Of course, this question is particularly relevant to documents (such as the Iraqi Constitution) that are written by one group of people who are clearly invested in its passage but must be approved by an entirely different group of people.
From: conlawprof-bounces at lists.ucla.edu on behalf of Scarberry, Mark
Sent: Thu 9/8/2005 6:29 PM
To: CONLAWPROF at lists.ucla.edu
Subject: RE: Same-Sex Marriage: Who Decides -- Calif. voters have, by initiative
>From a news story by Gary Delsohn in the Sacramento Bee newspaper (the main
paper in California's capital):
"Vik Amar, a constitutional authority at Hastings College of the Law in San
Francisco who agrees with what [state Assemblyman] Leno is trying to
achieve, said Schwarzenegger is on solid legal ground in vetoing the bill.
"For one thing, Proposition 22 added a new section of the state's family law
code that can only be changed by voters, not the Legislature.
"Leno argued that his bill found a way around that requirement by adding new
language to the code, rather than amending the language in Proposition 22.
That was possible, Leno said, because Proposition 22 was aimed at making
sure same-sex marriages allowed by other states weren't sanctioned in
California. His bill dealt only with California marriages.
"Amar said Leno's interpretation of Proposition 22 was overly narrow and -
if correct - would render the statutory initiative in violation of the
" 'If I was the governor's legal adviser,' Amar said, 'I would probably
advise him that as much as I wish he could sign the bill there's probably
not a decent argument that the bill is valid.' "
Mark S. Scarberry
Pepperdine University School of Law
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