Gay marriage in California, part II

Since my last post weighing in on gay marriage, not much has happened on the California front. Until this. The California Senate has apparently voted to allow same-sex marriage. How, you say, given that Proposition 22 was overwhelmingly passed by the citizens of California in 2000? Let me explain (with many hat tips to Patterico, Dafydd and XRLQ):

California citizens may propose statutes or Consitutional amendments under the initiative process of Article 2, Section 8 of the California Constitution, which reads:

CALIFORNIA CONSTITUTION ARTICLE 2 VOTING, INITIATIVE AND REFERENDUM, AND RECALL SEC. 8.

(a) The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.

(b) An initiative measure may be proposed by presenting to the Secretary of State a petition that sets forth the text of the proposed statute or amendment to the Constitution and is certified to have been signed by electors equal in number to 5 percent in the case of a statute, and 8 percent in the case of an amendment to the Constitution, of the votes for all candidates for Governor at the last gubernatorial election.

(c) The Secretary of State shall then submit the measure at the next general election held at least 131 days after it qualifies or at any special statewide election held prior to that general election. The Governor may call a special statewide election for the measure.

(d) An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.

(e) An initiative measure shall not include or exclude any political subdivision of the State from the application or effect ofits provisions based upon approval or disapproval of the initiative measure, or based upon the casting of a specified percentage of votes in favor of the measure, by the electors of that political subdivision.

(f) An initiative measure shall not contain alternative or cumulative provisions wherein one or more of those provisions would become law depending upon the casting of a specified percentage of votes for or against the measure.

A carefull reading of Article 2, section 8(b), will reveal that the only real difference between an initiative to add a statute or one to amend the Constitution is in the number of signatures you need to get your initiative on the ballot: 5% and 8%, respectively. Once you have your signatures, though, an initiative passes via majority vote whether it amends the Constitution or simply adds a statute.

For initiative statutes:

CALIFORNIA CONSTITUTIONARTICLE 2 VOTING, INITIATIVE AND REFERENDUM, AND RECALL SEC. 10.

(a) An initiative statute or referendum approved by a majority of votes thereon takes effect the day after the electionunless the measure provides otherwise. If a referendum petition isfiled against a part of a statute the remainder shall not be delayedfrom going into effect.

(b) If provisions of 2 or more measures approved at the same election conflict, those of the measure receiving the highest affirmative vote shall prevail.

(c) The Legislature may amend or repeal referendum statutes. It may amend or repeal an initiative statute by another statute thatbecomes effective only when approved by the electors unless theinitiative statute permits amendment or repeal without theirapproval.

(d) Prior to circulation of an initiative or referendum petitionfor signatures, a copy shall be submitted to the Attorney General whoshall prepare a title and summary of the measure as provided by law.

(e) The Legislature shall provide the manner in which petitionsshall be circulated, presented, and certified, and measures submittedto the electors.

For initiative constitutional amendments:

CALIFORNIA CONSTITUTION ARTICLE 18 AMENDING AND REVISING THE CONSTITUTION SEC. 3.

The electors may amend the Constitution by initiative.

CALIFORNIA CONSTITUTION ARTICLE 18 AMENDING AND REVISING THE CONSTITUTION SEC. 4.

A proposed amendment or revision shall be submitted to the electors and if approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise. If provisions of 2 or more measures approved at the same election conflict, those of the measure receiving the highest affirmative vote shall prevail.

Ok, now that we have the basics down, let's address Proposition 22, which was an initiative statute. Under Article 2, section 10(c), "The Legislature may amend or repeal referendum statutes. It may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval." (Emphasis added.)

What this means, as Dafydd ably points out, is that the Legislature cannot amend or repeal an initiative statute on its own. Rather, it must first vote to repeal or amend it, and then put that up for a vote by the citizens. What does it mean to "amend or repeal" an initiative?

"[A]ny change of the scope or effect of an existing statute, whether by addition, omission, or substitution of provisions, which does not wholly terminate its existence, whether by an act purporting to amend, repeal, revise, or supplement, or by an act independent and original in form [is an amendment]. [Citation.] A statute which adds to or takes away from an existing statute is considered an amendment. [Citation.]" Mobilepark West Homeowners Assn. v. Escondido Mobilepark West, 35 Cal. App. 4th 32, 40 (1995) .

My first thought upon reading the California Constitution was that the press is just stupid, and that the vote by the California Senate was to repeal the statute and thereafter place the matter to a state-wide vote by the citizens, as required by Article 2, section 10(c). Secure in my belief that the citizens would never vote to repeal what they had approved five years earlier by over 60%, I figured the whole thing was an exercise in futility, but at least procedurally legitimate.

But that is not what happened. The California Senate bill just approved says nothing about repealing Proposition 22 or putting the matter up for a state-wide vote. Rather, the California Senate hopes to win on a technicality with the help of the Courts. From the AP article reporting the vote:

"Proposition 22 was approved by California voters in 2000. The initiative added a section to the state Family Code stating that 'only marriage between a man and a woman is valid or recognized in California.'

It was put on the ballot when it appeared that Hawaii might legalize gay marriages and was intended to prevent California from recognizing gay marriages performed elsewhere.

Leno's bill would amend a separate section of state law that bars the state from recognizing same-sex marriages performed in California."

Get that? The bill amends a different section of state law, so it's not an "amendment" and does not "repeal" Proposition 22. Article 2, section 10(c) therefore does not come into play, so you - the citizens - don't get to vote on it!

This is nonsense. As XRLQ points out, there has already been a California Court of Appeal ruling holding that Proposition 22 unambiguously prohibits California from recognizing same sex marriages performed both out of state and in California. From Knight v. Superior Court, 128 Cal. App. 4th 14, 23-24 (2005) :

"The plain language of Proposition 22 and its initiative statute, section 308.5, reaffirms the definition of marriage in section 300, by stating that only marriage between a man and a woman shall be valid and recognized in California. This limitation ensures that California will not legitimize or recognize same-sex marriages from other jurisdictions, as it otherwise would be required to do pursuant to section 308, and that California will not permit same-sex partners to validly marry within the state. "

Thus, without help from the Courts, this Senate bill is doomed. To recognize same sex marriage in California via this bill, the California Supreme Court will have to overrule Knight v. Superior Court, find that Proposition 22 is ambiguous, find that it only prohibits recognition of same sex marriages performed out-of-state, says nothing about same-sex marriages perforemd in California, and therefore find that the Senate bill is not an amendment of Proposition 22.

The last wrinkle in the saga is that since Proposition 22 was a mere initiative statute, some activist judge can rule that it violates the California Constitution, which has already happened. Hopefully, the California Supreme Court will directly rule on that in the litigation currently pending spawned by Gavin Newsome's nonsense in San Francisco. If the California Supreme Court decides that banning gay marriage is unconstitutional, then the citizens can still amend the California Constitution via initiative, and still win with a mere majority vote, they'll just have to get more signatures than last time to get it on the ballot.