Schwarzenegger and Gay Marriage Revisited

[Marty Lederman]

In yesterday's FINDLAW, an interesting and persuasive "middle-ground" position from Vik Amar and Ethan Lieb:  http://writ.news.findlaw.com/commentary/20050916_leib.html.

They agree with Eugene that the new statute could not be implemented as long as Prop. 22 is operative, but argue that that does not require a veto:  The Governor could, and should, sign the bill anyway, and decline to implement it until either (i) the People approve it; or (ii) Prop. 22 is declared invalid in court.

Of course, their proposal is based on what they likely know to be a counterfactual assumption -- namely, that Schwzenegger has even an iota of incentive or desire to sign the bill, or to do the right thing.  He may be hiding behind the "law made me do it" excuse, but I suspect he's relieved, rather than frustrated, that he's got that legal fig-leaf.

 
----- Original Message ----- 
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
To: <CONLAWPROF at lists.ucla.edu>
Sent: Wednesday, September 07, 2005 10:57 PM
Subject: RE: Same-Sex Marriage: Who Decides -- Calif. voters have,byinitiati ve


A good question, to which there actually seems to be a definite
answer.  (1)  Prop. 22 is an initiative statute.  (2)  Initiative
statutes may not be modified or repealed through simple legislation.
See Cal. Const. art. 2 sec. 10(c).  (3)  If the legislature wants to
modify or repeal an initiative statute, it must vote to place another
statutory proposal on the ballot, and submit it to the voters; if the
voters approve the modification or repeal, it then takes effect.  See
id.

I'm told that this is an unusual rule for states that have a
statutory initiative; but in any event, that seems to be the rule in
California.

Eugene

> -----Original Message-----
> From: Elizabeth Dale [mailto:edale1 at bellsouth.net] 
> Sent: Wednesday, September 07, 2005 5:43 PM
> To: 'Chambers, Henry'; Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> Subject: RE: Same-Sex Marriage: Who Decides -- Calif. voters 
> have,byinitiati ve
> 
> 
> Perhaps this issue has already been addressed, if so, I 
> apologize, I've been a bit swamped the past couple of days 
> and haven't kept up with this thread.
> 
> But it strikes me it matters what the status of the 
> initiative was. Did it add a provision to the constitution? 
> Did it merely ratify a provision that was the equivalent of a 
> piece of legislation? If the initiative was merely the 
> equivalent of a statute, it seems to me there might be a 
> plausible argument that subsequent legislation (ie, this act) 
> simply amended/altered/rescinded and revised an earlier 
> provision. A part of that argument would be that the people 
> speak equally through the legislature or through the 
> initiative process. 
> 
> If, however, the initiative was the equivalent of a 
> constitutional amendment, that argument doesn't fly. So it 
> seems to me the first question is what the status of the 
> initiative is. Is it the equivalent of legislation, or 
> something more. If it's only legislation an argument could be 
> made that the subsequent act reflected a new consensus, if 
> it's more, that's a harder sell. 
> 
> 
> Elizabeth Dale
> 
> Associate Professor, US Legal History, Department of History, 
> Affiliate Professor of Legal History, Levin College of Law
> 
> University of Florida
> PO Box 17320
> Gainesville, Florida 32611
> 
> edale at history.ufl.edu
> http://plaza.ufl.edu/edale
> 352-393-0271 ex 262
> 
> 
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of 
> Chambers, Henry
> Sent: Wednesday, September 07, 2005 8:29 PM
> To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> Subject: RE: Same-Sex Marriage: Who Decides -- Calif. voters 
> have,byinitiati ve
> 
> There are at least two reasons why the arguing that Prop. 22 
> only covered out-of-state marriages is reasonable.  Note that 
> I do not claim it is a winning argument, just a plausible one. 
>  
> 1) My impression, which may be wrong, is that the 2000 
> initiative was a defense against the recognition of civil 
> unions/marriages from other states. If so, the focus of Prop. 
> 22 might have been only on out of state same-sex marriages 
> because California same-sex marriages were already banned and 
> the fear to be addressed was out-of-state marriages. 
>  
> 2) If Prop. 22 were to apply to California same-sex marriages 
> (which were already not recognized), that would mean that 
> part of the point of Prop. 22 was to firm up something that 
> was already state law to guarantee that it could only be 
> changed by initiative.  That may have been the part of the 
> motivation of the initiative, but confirming state law 
> already in existence just to make it harder to change does 
> not strike me as being the normal point of going through the 
> initiative process (even if it was just an add-on to the main 
> part of the initiative).  If it was, maybe Californians have 
> far too much time on their hands. :-)
>  
> -Hank   
>  
> 
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