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

[Mae Kuykendall]

Mark Scarberry writes:

"
Vik Amar's point is relevant, for an additional reason, to how we
should
understand the initiative statute. There is a rule of construction that
a
statute will not be given a meaning that makes it unconstitutional if
there is another reasonable way to read it."

I had been mulling that very point, thinking that the best case for the
argument that the legislature's action having to be unconstitutional
under state law is the rule of construction Mark cites, that the federal
courts should try to construe statues to avoid constitutional problems. 
And if the state legislature acted constitutionally, then the federal
courts would have to conclude the voter initiative is unconstitutional
(so say Vik Amar and Mark Scarberry).

But isn't the point at which the canon takes hold the one at which we
conclude the state legislature acted constitutionally?  Mark and Vic
seem to be urging the canon of construction on the wrong party--i.e.,
the governator rather than the federal courts.  If the governor signs
the bill, wouldn't the federal courts, if asked about the
constitutionality of the voter initiative, apply the rule of
construction Mark cites--"a statute will not be given a meaning that
makes it unconstitutional if there is another reasonable way to read
it"--and construe the initiative to have been a temporary placeholder to
protect the legislature's ability to decide the ultimate question?  

As Hank has said, that's a reasonable, though not inarguable, way to
read it.  I believe Sandy said it's logical--he thought perhaps not a
likely construction if it were read as a permanent bar on out-of-state
same sex marriages that persists contemporaneously with the in-state
approval.  But it's logical (and reasonable given the tactics in selling
the initiative) if you give it a narrowing construction (suggested by
the rule of construction cited) that causes it to fall away once the
legislature creates a new meaning in California.  The very thing the
rule of construction calls for is that the construction be
reasonable--it's all we need if we are just doing modest, deferential
constitutional judging without a personal concern for the outcome. 

The federal courts could, if asked to perform constitutional last rites
for the ballot initiative, opt to preside over its burial without the
necessity of declaring it unconstitutional, chanting the rule of
construction as the statute is lowed into its final resting place.

Speaking of reasonable, the New York Times finds the governator's views
unreasonable.  ("The Legislature is hardly a renegade body if it roughly
mirrors popular opinion."--Sept. 9, 2005)  Admittedly, the Times
editorial writers are not counseled in constitutional law to the same
extent as the average California voter.  And, to be fair, maybe they are
being a bit cavalier and just using rough common sense, but their
uncounseled point seems to be that the murky voter intention of five
years ago is not a superior basis for establishing California law, as
compared with the judgment of the legislature today.

Mae Kuykendall


>>> "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu> 09/09 11:52 AM
>>>
Mae's point is a good one; the average voter likely would not have
known
that such a narrow interpretation would render the initiative
unconstitutional. Note, however, that a lot of public discussion of the
full
faith and credit issue had included the point that a strong state
public
policy was needed for a state to refuse to recognize out-of-state
marriages.
Thus, if someone had put forward the narrow interpretation of the
initiative
statute during the campaign, some of the more knowledgeable voters
would
have seen the constitutional problem.

It also seems highly unlikely that the average voter would have been
thinking in terms of reserving a power to the legislature to recognize
same-sex marriages when voting for an initiative that said that only
marriages between a man and woman would be valid or recognized in
California. If we rule out subtlety on one side of the equation, we
need to
rule it out on both sides.

Vik Amar's point is relevant, for an additional reason, to how we
should
understand the initiative statute. There is a rule of construction that
a
statute will not be given a meaning that makes it unconstitutional if
there
is another reasonable way to read it. If I understand it correctly,
that
rule applies whether or not those who enacted the statute understood
that
there was a constitutional issue. 
 
Mark S. Scarberry
Pepperdine University School of Law
 

-----Original Message-----
From: Mae Kuykendall [mailto:mae.kuykendall at law.msu.edu] 
Sent: Thursday, September 08, 2005 7:07 PM
To: CONLAWPROF at lists.ucla.edu 
Subject: RE: Same-Sex Marriage: Who Decides -- Calif. voters have, by
initiative

Mark Scarberry quotes Vik Amar:  "... Leno's interpretation of
Proposition 22 was overly narrow and - if correct - would render the
statutory initiative in violation of the federal constitution."

This had a compelling quality to it, until that, Wait a minute!
moment.
 Is this to say voter intent should be construed to preclude the
possibility that voters would vote for something without careful
advice
from a constitutional law professor about the nuances of Full Faith
and
Credit and hence the constitutionality of their enactment?  If the
proponents said, We only need this to make sure activist judges from
another state don't impose a definition on us, and made claims about
protecting the right of Californians (the legislature?) to decide
family
law, it seems we must conclude the voters said, "Well, no, based on
advice from our various conlaw counsel, our intent is broader than
that,
since we need to have an in-state policy that is consistent with the
policy we are enacting for out-of-state marriages.  Therefore, we are
enacting a statute clearly intended to preclude our legislature from
revising our in-state definition of marriage, since we intend for the
out-of-state recognition principle to be permanent without regard to
any
evolution of views by the legislature reflecting later opinion of
their
constituents about the California approach to marriage.   Otherwise,
what we vote for would be unconstitutional under federal law, which is
logically not possible, since we, the voters of California, are well
counseled in constitutional law.  If our legislature ever does enact a
different definition of marriage, they will all be quite poorly
counseled and bereft of a colorable legal argument, as opposed to us,
the well counseled voters responding to the representations of the
ballot proponents that the initiative is about protecting us from
acitivist judges in other states.  Are we clear?"

Mae Kuykendall

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